1.
The Claimant was born on 25th September 1974 and is now aged
43. In October 2013 she suffered serious lower limb injuries in a road traffic
accident on the M5 motorway when travelling as a front seat passenger. The
driver of the vehicle was the Defendant, Malcolm Carpenter. At the time of the
accident he was the Claimant’s partner; they have since married. Liability in
respect of the accident has been admitted and this action for personal injury
and consequential financial losses therefore came before me on the issue of
quantum only.
2.
Mr James Arney appeared on behalf of the Claimant and Mr William Audland
QC on behalf of the Defendant.
The
Claimant’s Injuries, Condition and Prognosis
3.
The Claimant suffered crushing injuries to both feet and lower legs. On
the left side, an open fracture and crush injury compromised the blood supply
to the ankle and foot. The limb could not be salvaged and the Claimant
underwent a left sided trans-tibial (below knee) amputation in early November
2013. The right foot was also badly crushed causing a dislocation of the great
toe and a number of fracture dislocations of the bones in the midfoot. These
injuries were treated by the insertion of a metal plate in the midfoot and by
fixation of the broken toes with wires and screws. She suffered a fractured
sternum and a relatively minor closed head injury, neither of which have caused
any significant ongoing functional disability. The Claimant was in hospital in
Birmingham for a month and then transferred to Charing Cross Hospital in London
where the amputation stump was revised and shortened due to poor healing of the
wound. She was eventually discharged home on 18th December 2013.
4.
The Claimant remained under the care of the out-patient clinical teams
at Charing Cross Hospital during 2014. In many respects her rehabilitation
was, relatively speaking, uneventful. She suffered from some stump oozing and
irritation but this appears to have quickly resolved. She was fitted with a
lower limb prosthesis in early January 2014 and discharged by the physiotherapy
team on 19th February 2014 when it was noted that she had taken to
walking with the prosthesis well and was able to walk unaided, including on
public transport. The team expressed the hope that the Claimant’s progress
should continue to normal, or near normal, walking over greater distances and
with more confidence. In November 2014, Dr Shipway, the rehabilitation
consultant noted that she was “doing extremely well” from her left amputation
and that she was keen to increase her physical activity, such as walking and
rambling, and even playing tennis. He noted that she was keen to receive a
limb with an articulated ankle for this purpose, a request which he considered
to be entirely reasonable.
5.
However, during the same period, the clinical notes also record the
development of two serious complications: phantom limb pain originating from
the missing left foot and pain and stiffness, particularly in the midfoot, on
the right side. In January 2014, the Claimant was seen by a Consultant in Pain
Medicine in connection with her neuropathic phantom limb pain. At that stage
the pain was responding well to medication. The good response did not
continue. The Claimant was prescribed a different drug regime, with little
effect, and in 2015 she underwent radiofrequency ablation of the nerve to
alleviate the pain and subcutaneous injections of sodium salicylate. Neither
treatment, as I set out below, was curative. Likewise, her problems with pain
and stiffness of the right ankle and foot emerged in 2014 and consideration was
given to removing the metal plate. In November 2014 it was recorded that her
main symptoms related to the right foot which was painful. Although the pain
has, to a large extent, resolved the Claimant continues to suffer from
stiffness of the right ankle and stiffness of the midfoot.
Phantom Pain
6.
In her witness statement of May 2017 the Claimant provided a graphic
description of the neuropathic pain originating from the missing left foot. The
pain was, she said, the most consuming feature of her condition; like a “cutting
pain in my non-existent foot underneath the toes, like someone is digging
something sharp like fingernails into the skin under my toes and scraping it
across the width of my foot. Sometimes it’s a squashing or crushing feeling,
as if the toes are being squeezed in a vice. It is also painful underneath the
ball of the foot and into the ankle”. She said that on a scale of 1 to 10,
10 being the worst possible pain imaginable, the pain usually scored around 6
to 8, although it could be as great as 10. She said that the pain was present
all the time and that, although her medication regime would usually keep the
pain within manageable levels, she would feel the effect of the medication
wearing off. She had random good and bad days and described being trapped in a
cycle of pain, which made her tired, with the tiredness then making the pain
worse. Exercise would sometimes be helpful; removing the prosthesis and
rubbing the stump would also sometimes help, but this required privacy. She
said she tried to distract herself from the pain as much as possible.
7.
The Claimant has undergone a large number of different techniques for
pain relief; some highly intrusive and intrinsically painful (e.g. the
radiofrequency ablation), other more conservative strategies (e.g. mindfulness;
mirror therapy) and many on the spectrum between (e.g neuromodulation,
acupuncture). She is waiting to enlist on a pain management plan. It was not
disputed at trial however that there is no cure for the condition and no
treatment which guarantees relief. Ongoing pain, tiredness and, what Mr Arney
described as resulting “finite reserves”, were features of her condition which,
he asserted, permeated all aspects of her life including her ability to care for
her child, to work and her leisure activities. She told me that her pain made
her all the more determined to lead an active sporting life for distraction and
relief.
The Right Foot
8.
The Claimant’s right foot, although salvaged, was nonetheless badly
damaged. A recent attempt to remove the metal work has been unsuccessful and,
although a further removal attempt may be made, the Claimant currently has a
“dorsal hump”: a slightly prominent and tender area on the top of the foot over
the plate which limits the range of footwear which she can wear comfortably.
Of more functional significance is the stiffness in the ankle and midfoot and
the reduced range of upward and downward movement of the ankle joint and the
midfoot which limits her power to “push off” from the ground and prevents
normal heel to toe “roll over” during walking. Whereas a normal right ankle
and foot would have served to compensate for the asymmetrical gait caused by
the prosthesis, the absence of normal joint mobility and strength on the right
side just compounds the problem. Again, these residual problems affecting the
right foot are likely to continue.
The Expert Evidence on Prognosis
9.
The Claimant was assessed for the purposes of the litigation by two
medical experts. For the Claimant, by Professor Michael Saleh, an orthopaedic
surgeon specialising in trauma and limb reconstruction and, for the Defendant,
by Professor Rajiv Hanspal, a physician specialising in rehabilitation medicine
formerly based at the Prosthetic Rehabilitation Unit at Stanmore. Both gave
evidence at trial although, in fact, it did not seem to me that there was any real
difference between their respective opinions concerning the Claimant’s
prognosis. They made the following points relevant to the quantification of
the claim:
i)
as with any amputee, the Claimant will be prone to back pain in the
future due to the altered mechanics of gait;
ii)
she is at higher risk of degenerative changes in the major lower limb
joints which will need to be managed by physiotherapy and by anti-inflammatory
medication;
iii)
she will continue to be fit for sedentary work until normal retirement
age;
iv)
her physical activity level will reduce in later life (as with many able-bodied
people);
v)
either in her mid to late 60s or early 70s, the Claimant will probably need
to use a wheelchair: initially this will be for longer distances outdoors but
gradually she will need to use a wheelchair more, including indoors;
vi)
she will remain self-caring until her late 70s and early 80s when she
will start to need more help;
vii)
during the last two years of her life she will need assistance with
transfers and help from a single carer: Professor Saleh gave evidence that
during these last two years she will need help to get out of a low chair, help with
toileting, bathing and with her bed-time routine;
viii)
both experts agreed that she was currently compromised in terms of
performing heavier aspects of housework, lifting, carrying, and working at
ground level (e.g cleaning a floor) but as to the level of assistance required
they deferred to the care experts.
10.
The experts also commented upon the risks associated with the Claimant
undertaking high impact sports, such as running. In their joint report they
had agreed that the Claimant would find high impact sport difficult and neither
recommended such activity. In his evidence to me, Professor Saleh clarified
that the risk was not to the stump, as a running blade would act as a shock
absorber; the risk was to the right foot which did not have an effective shock
absorber given the bony damage to the midfoot. He said that it would be
logical to suppose that, given the midfoot damage, the right knee and ankle
might be at risk of earlier degenerative changes if the Claimant were to pursue
high impact sports. He would therefore advise against high impact sports
although he said that he recognised there were significant cardiovascular and
muscular benefits. Professor Hanspal gave evidence in very much a similar
vein. He said that running was “relatively contra-indicated” because of the
possibility of earlier degenerative changes. He recognised the psychological
benefits of sport but recommended other forms of sport, such as swimming. I
pick up this point later when I consider the claim for a sports activity
prosthesis.
11.
Finally, and on a positive note, the Clamant did not suffer either
enduring or particularly severe psychological sequelae. Reports from two
psychiatrists were available to me, from Dr Baggaley for the Claimant and from
Dr Mallett for the Defendant. Neither gave evidence at trial as there was no
point of difference between them. They reported that, at its highest, the
Claimant experienced a range of symptoms typical of an adjustment disorder. Dr
Baggaley’s opinion was that the condition had largely remitted by the summer of
2014 and that her residual symptoms (travel anxiety and some problems with
self-image) did not constitute a recognisable psychiatric disorder. Dr Mallett
considered that the Claimant had suffered some depressive symptoms for the
first year. Both experts commented upon the Claimant’s robust personality.
They considered that her residual symptoms would respond well to a course of
therapy.
The Issues
12.
There are a number of preliminary points to make.
13.
First, there is no issue concerning the form of the award. Both parties
have invited me to consider the reasonable valuation on the basis of a
capitalised “lump sum” and, having considered the appropriate form of the
award, I find no good reason to interfere with this approach. There is no
dispute over the Claimant’s life expectation which has been considered by
appropriate experts for each side and agreed to be normal. The claim for care
and case management (typically the element awarded in the form of a Periodical
Payments Order), although substantial, is not the most significant element of
the claim in money terms. A lump sum will also give the Claimant a degree of
flexibility in her choice of allocation of damages in the future. The life
multiplier for future loss has been agreed to be 55.02 (using the current
-0.75% discount rate).
14.
Following the evidence, I gave the parties time to discuss the claims
further and directed they set out in an agreed document a list of the issues
which remained for my determination. At the outset of the trial, both parties had
been standing behind the approaches taken in the Schedule and Counter
Schedule. Those documents demonstrated a large difference between the parties
across the whole swathe of claims, the Schedule generating a figure of just
over £7 million and the Counter Schedule a figure just under £2 million. The
trial was hard fought by both sides. By the time of closing submissions
however, and following the further discussion, some significant narrowing of
the chasm between the parties had been achieved. However there remained a large
number of points still in dispute. Save for noting that general damages and
past losses including interest were agreed between the parties at £290,000,
this judgment does not otherwise set out the agreed losses but deals only with
the points remaining in issue. I deal with those points as issues of principle
with the parties to then undertake the mathematical exercise of
quantification.
15.
The issues that need to be dealt with in this judgment fall under the
following headings:
i)
Prosthetics
ii)
Care and case management
iii)
Aids and equipment
iv)
Holidays
v)
Transport costs
vi)
Loss of earnings
vii)
Accommodation.
16.
Under some of those heads of loss, elements of agreement had been
reached by the point of closing submissions, but each include some residual
dispute. As to the general legal principles which I should apply when
considering the heads of loss, there was no difference between the parties. It
was common ground that the overall aim of compensatory damages in tort is to
place the Claimant, so far as money can do so, in the same position as she
would have been in if she had not suffered the wrong for which she was liable
to be compensated, the object being “full compensation” for both financial and
non-financial losses (see Wells v Wells [1999] AC 345 at 382). The
Claimant is entitled to damages sufficient to meet her reasonable needs arising
from her injuries and, in deciding whether a head of loss is recoverable in the
amount claimed or at all, the Court should assess the reasonableness of the
head of loss and its amount (Sowdon v Lodge [2004] EWCA Civ 1370). The
parties also accepted that proportionality was relevant, in the sense that the
Court should have regard to the extent to which, in respect of any claim, the
same or substantially the same result could be achieved by other less expensive
means (Whiten v St George’s Healthcare Trust [2011] EWHC 2066 and A v
University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 266).
The Claimant
17.
There were only two factual witnesses, the Claimant and a work
colleague, Ms Karen Huxley. I set out below some aspects of the Claimant’s
evidence and my impression of her generally to the extent relevant to my
approach and findings across the individual heads of loss in dispute.
18.
The Defendant submits that I should treat the Claimant’s evidence with
caution and that, in a number of key respects, her evidence was unreliable and
demonstrated a tendency towards trimming. I pick up below some specific points
made by Mr Audland where relevant to particular heads of loss in question.
However, I pause to note at this stage that I do not accept his submission
that, in any respect, the Claimant’s evidence was expedient and tailored to
maximise her claim. The Claimant appeared to me to give her evidence in a
straightforward and matter-of-fact way. I formed the impression that both in
her witness statement and in her oral evidence she was honest and doing her
best to answer, inevitably very difficult, questions concerning the course her
life would have taken but for the accident and how her life, post-trial, may
yet unfold. Although there were inconsistencies between matters recorded in
her witness statement and her oral evidence, none of those differences have led
me to the conclusion that her evidence was contrived. The Claimant explained
the differences by saying that she had had the best part of a year to think
about things more closely and review aspects of her earlier account in the
light of the further experience. I find her explanation to be credible and I
accept it.
19.
The Claimant gave evidence that, before her accident, she had enjoyed a
full and active life. Work, sport and travel were all equally important to
her. The Claimant’s CV (supplied to her current employer in 2010 when she
applied for her job) documented that she had worked, virtually continuously,
since leaving Newcastle University. Her love of travel had led her to find her
niche in the field of travel journalism and marketing and at the time of her
accident in 2013 she had been working for Cedar Communications, a content
marketing agency, based in Central London for three years. The company holds
accounts for a number of travel and hospitality organisations, the Claimant
working principally on the British Airways account editing the various
magazines for in house and customer consumption. The Claimant was fit and very
active. She enjoyed sport: tennis, water skiing, cross-country skiing and
snow-boarding. She would pursue some form of exercise on most days: either
swimming or cycling or going to the gym. Travel was an important part of her
life, both for work and for pleasure. When she was single she had enjoyed
travelling alone or with friends to remote, far flung, destinations; having met
the Defendant she had travelled with him to Europe and long-haul destinations.
The lifestyle which she depicted, both in her witness statement and in her oral
evidence, was of an energetic woman who had been living her life to the full.
20.
At the time of the accident, the Claimant was in a relationship with the
Defendant, they had not yet married but were committed to each other and living
together. The Defendant is older than the Claimant (by 16 years). He retired
early from his job in IT in his mid-fifties. Although he had already had a
family (a grown-up daughter, Autumn) and had undergone a vasectomy, there was
an understanding between the Claimant and Defendant that their marriage would
include children. The couple married in 2015 and Ossian, their son, was born in
2016 by IVF following egg donation. Equally, it was understood between the
couple that, although the marriage would include children, the Defendant would
be permitted to maintain something of the life which he had intended for
himself in his retirement; this included travelling to Europe mid-week (to take
advantage of cheaper travel costs), staying in touch with friends and enjoying
sport. The Claimant had, at the time of the accident, recently bought a home
in Brackenbury Village, a leafy and attractive part of West London. The house
was, and remains, in her sole name, although the Defendant contributes 50% of
the mortgage. It was bought as a “project” requiring extensive renovation and
remodelling which was already underway at the time of the accident.
21.
The Claimant told me that it is her intention to re-claim as much of her
busy work and sporting pre-accident lifestyle as may now be possible and pursue
as many of her pre-accident ambitions as are now realistic given her functional
disability. I have no reason to doubt her intention to do so. She has had a
baby; already enrolled in an entry level triathlon for para-athletes during the
summer of 2018 which involves swimming for 100 metres, a 1 kilometre run and a
3 kilometre bike ride; she has returned to work (working four days per week,
one day from home) which involves travel into Central London and to Heathrow
(BA headquarters).
22.
The Claimant’s description of her life both before and after the
accident demonstrates resolve and determination. I agree with the
psychiatrists’ view of her as someone with a robust personality. Mr Arney
referred to her as stoical; he cautioned me against minimising the impact of her
injuries on her because of her calm and practical response. This is a valid
point which I bear in mind. The Claimant also struck me as organised and
capable. She has demonstrated considerable independence of mind.
Notwithstanding advice (which she accepted she had received) as to the risks
associated with high-impact sport, including running, she was determined to
pursue those activities, her rationale being that the experts had painted “a
pretty bleak” picture of her long-term future in any event and so she intended
to make the most of her capacity for physical activity now.
The Experts
23.
I heard evidence from four pairs of experts:
i)
Professor Saleh and Professor Hanspal (see above)
ii)
Mr Nieveen and Mr Sullivan (prosthetics)
iii)
Dr Catherine Willson and Ms Barbara Scandrett (care)
iv)
Mr Tom Wethers and Mr Paul Vipond (accommodation)
The experts were skilfully
cross examined by Mr Arney and Mr Audland. Both, at various times, however
sought to exploit inconsistencies and perceived exaggerations or
under-valuations by the experts to demonstrate the inherent unreliability of the
witnesses’ opinions generally. I did not find the approach to be helpful and
at times it seemed to be little more than point scoring. None of the experts’
views were so extreme or so out of kilter with the underlying material that I
would be prepared to disregard their evidence as a whole. My view is that all
of the experts were doing their best to help the Court and in reaching my
conclusions below I have taken their evidence into account.
Prosthetics
24.
Given its direct bearing upon the Claimant’s independence, the logical
starting point is the dispute concerning the prosthetics. I heard evidence on
the topic from the Claimant, Professor Saleh, Professor Hanspal and from the
prosthetists, Mr Nieveen and Mr Sullivan.
i)The daily
activity limb or “everyday” limb
The Claimant’s Case
25.
The Claimant’s current everyday limb is the Elation prosthetic which was
recommended by Mr Abdo Haidar of the London Prosthetic Centre. It is a
trans-tibial, modular prosthesis with a foot incorporating a heel device which can
be adjusted by the user to accommodate shoes up to 2 inches in heel height.
The limb is fitted with a high definition silicone cosmetic sleeve which gives
a very life-like appearance. The ankle joint of the Elation prosthesis is
however fixed, preventing natural plantar and dorsiflexion and “rolling
through” of the foot during walking, producing a flat-footed gait. It was
common ground between the relevant experts that this problem is compounded by
the stiffness of the ankle and midfoot on the right side. The combined effect
of the fixed ankle joint and the stiffness on the right side is that, although
not intrinsically a particularly heavy prosthetic, the Elation is a relatively
tiring limb to wear. The Claimant also found that the fixed ankle presented an
embarrassing tripping hazard to those around her. With legs crossed the foot sticks
out in front; alternatively if the knee is bent so that the foot is flat on the
ground she gets chafing and pain around the socket. The only comfortable pose
for sitting for any reasonable period of time is with the leg stretched out in
front of her.
26.
These problems led Claimant to discuss with Mr Haidar the possibility of
a more versatile limb which would incorporate ankle movement. She told me that
Mr Haidar recommended that she test a Meridium prosthetic which is fitted with
sensors and a microprocessor ankle enabling the foot to conform to the ground
and to flex up and down in a similar way to a natural foot. She was fitted
with the Meridium for a three-week trial period and used it daily for hill
walking, general pavement walking, gym work and for Pilates. She told me that
the Meridium made a real difference to the way in which she walked. Not only
did it permit a more natural and smooth walk, but it also saved energy,
particularly when walking on uneven surfaces or inclines/declines. She felt
more stable, there was no jolting of the hip when she stepped on stones or
bumps and she felt much more confident when walking on uneven surfaces and
hills whilst on her own or when pushing the pram. She said that she had more
energy for other activities. Also, when sitting down she was able to bend the
knee and her ankle would naturally adjust. She was also able to use it when
wearing heels. The essential problem with the Meridium prosthetic is that it
cannot be fitted with a silicone cover. It is eye-catchingly unsightly. The
“trade off” for the improved function of the Meridium is therefore that it can
only be worn with trousers or a longer skirt.
27.
I was shown a short series of videos depicting the Claimant wearing the
Elation prosthetic and the Meridium prosthetic. I can deal with these
relatively shortly. There was no disagreement that the Meridium enabled the
Claimant to walk more quickly; that her gait was more symmetrical and that she
was able to turn more freely. She seemed to be able to climb stairs with less
effort. These points were obvious to a lay person. What was less obvious to the
lay eye was the effect of the Meridium prosthetic on the right foot function;
Professor Saleh explained that the two feet try and “match” each other and, as
the left prosthetic foot was rolling through during walking, there was a more
normalised rolling through on the right also. Professor Hanspal told me that
he largely agreed with Professor Saleh’s assessment of the improvement in the
Claimant’s gait using the Meridium.
28.
The Claimant also trialled an alternative prosthetic, the “Kinnex”. I
need say no more about that limb given that it is not advanced by the Defendant
as a realistic alternative. The Claimant did not however trial the Echelon
prosthesis, notwithstanding that it had been recommended by the Defendant’s
expert, Mr Sullivan. Her explanation, when questioned by Mr Audland on the
topic, was that the limb had not been recommended to her by her treating
prosthetist, Mr Haidar, whose clinical preference was for the Meridium. She
told me that Mr Haidar’s view was that the Meridium was the better limb for her
as it afforded a greater degree of ankle movement than the Echelon and would
enable her to wear a wider range of shoes.
29.
The Claimant told me that, understandably, there are occasions
particularly in the summer when she wants to wear a shorter dress or skirt
without attracting untoward attention to her disability. The Claimant
therefore seeks the costs throughout life of two everyday limbs: the Elation
and the Meridium.
The Defendant’s Case
30.
The Defendant submits that the reasonable choice of everyday limb with
an “intelligent ankle” is an Echelon prosthesis which differs from the Meridium
in that the internal workings of the ankle joint are hydraulic. The Defendant
argues the Echelon performs to the same standard as a Meridium (in conforming
to different contours) and will enable the Claimant to walk safely and
comfortably on uneven terrain, including going uphill. It has further
advantages which the Meridium does not have: it is intrinsically lighter, it
can be fitted with a silicone sleeve for cosmesis and it does not require
batteries (which need to be re-charged). It is accepted by the Defendant that
the down-side of the Echelon foot is that it cannot accommodate different heel
heights unless the adjustment is made by the prosthetist, involving a trip to
the Clinic.
31.
I note that the significance of the dispute concerning the type of
everyday limb (in quantum terms) has receded considerably in the light of the
concession made by the Defendant in closing submissions. The argument advanced
by the Defendant in the Counter Schedule and at trial was that the Echelon
prosthesis would operate as a replacement of the Elation limb and therefore
only one type of everyday limb would therefore be reasonably required. No
allowance was made in the Counter Schedule for the costs associated with the
ongoing provision of the Elation prosthesis. In closing however, the Defendant
accepts that the Claimant has a reasonable ongoing need for the Elation in
addition the Echelon. Mr Audland submits however that:
i)
I should award the costs of the Elation prosthesis only to the
Claimant’s age 78.58 (therefore over a period of 35 years) on the basis that
cosmesis and the wish to wear higher heels will reduce in later years,
particularly given the prognosis for the right foot and the possibility of
accelerated degeneration in the event of the Claimant undertaking high impact
sport.
ii)
He maintains his primary case that I should allow the costs of the
Echelon prosthesis (in addition to the Elation) but that in the alternative I
should make an adjustment to the capitalised cost of the Meridium over the
course of the Claimant’s life to reflect the possibility that there is a real
prospect that the Claimant may in later life adopt the Echelon. He proposes a
deduction of 10% to reflect this chance.
Meridium v Echelon: Discussion
32.
The relative pros and cons of the Meridium and Echelon prosthetics were
debated at some considerable length at trial. Professor Hanspal, of all of the
experts, was probably the greatest advocate of the Echelon and did not accept
that the Echelon range of ankle movement was appreciably less (although said
that this issue was a matter for the prosthetists). He thought that an
hydraulic foot conferred all of the gait benefits of the Meridium. Both Mr
Nieveen and Mr Sullivan accepted that the Meridium was the heavier prosthesis,
had the disadvantage of using battery power and did not come with a silicone
sleeve. Both accepted that the Echelon prosthesis would involve the Claimant
in a visit to the Clinic if she wished to wear higher heeled shoes. As to
their relative function, Mr Nieveen was effectively cross examined by Mr
Audland that it would be expected that the Echelon would provide a similar
level of comfort and stability for the Claimant.
33.
However, although I have been invited by both parties to express a
preference for one expert over the other on the basis of points scored in cross
examination, in the end, my resolution of this aspect of the claim does not
turn upon the expert evidence. All of the experts were in the same position in
that, although each expressed marginal preferences, none were in a position to
advance a positive case for the Meridium over the Echelon, or vice versa, in
the absence of the Echelon prosthesis ever having been tried by the Claimant.
34.
It was clear from the evidence overall that there exists a range of
functionally good prostheses, all with slightly different pros and cons.
Professor Hanspal in his evidence mentioned, almost in passing, that there was
another prosthesis which was not in a UK catalogue (but available in the US) with
an adjustable hydraulic foot. The point was not developed, not least because
it emerged at such a late stage, but it illustrates the range of potentially
suitable prosthetics and that there is no single “right” artificial limb for
any particular amputee. Outside the medico-legal context the clinical
experience of the prosthetist and the personal preference of the user are likely
to determine which one is eventually prescribed, rather than claims made by the
manufacturer as to the theoretical function of any particular model.
35.
I accept Mr Audland’s submission that it is unsatisfactory that the
Echelon prosthesis has not been tried by the Claimant given that it was
recommended by Mr Sullivan in his report. However, I do not accept his further
point; that the Claimant has deliberately chosen not to trial the limb in order
to maximise her claim. Nor do I accept that the fact that she has not yet
bought the Meridium is evidence that she will not do so in the future if funds are
available. I accept the Claimant’s evidence that she did not trial the Echelon
for the simple reason that it was not recommended to her by Mr Haidar whose
clinical preference was for the Meridium and that she had a clear (and, I add,
understandable) preference for a prosthesis which would accommodate a range of
heel heights without her having to make a trip to the Clinic for an adjustment
to be made to the limb. I accept her evidence that if funds become available
she will purchase the Meridium prosthesis and that the reason she has not yet done
so is cash flow.
36.
Nor do I accept Mr Audland’s submission that in the absence of a trial
of the Echelon and a positive recommendation by the prosthetists in the light
of such a trial, the Claimant has failed to discharge the burden of making good
her claim for the Meridium. The Claimant’s choice of a Meridium is largely
because it affords her flexibility in footwear. This is reasonable. For this
reason alone, the claim is made out. However, as Mr Arney further submits, Mr
Audland’s submission that the costs of the Echelon should be allowed would lead
to the unsatisfactory and illogical end-point of the Claimant being awarded by
me the costs associated with a limb which she has never yet tested and which may
be uncomfortable or not suit her. I therefore accept the Claimant’s case that
her choice of the Meridium prosthetic is reasonable.
37.
The Defendant’s further submission is that, if I were to conclude that
the Meridium was reasonable, then I should make a downward adjustment to the
overall cost on the basis that in later life the Claimant may select the
Echelon over the Meridium. I do not accept this point either. I take into
account the Claimant’s prognosis, including the prospect that in later years
the Claimant will likely need to use a wheelchair for mobility. However, there
is no basis for my concluding that there is anything other than a fanciful chance
that the Claimant may in later years favour the Echelon over the Meridium
either because of the weight of the prosthesis, because wearing high heels will
be less important or because of technological advances. It is, I find,
overwhelmingly likely that the Claimant will in her later life elect to stay
with the prosthesis with which, by then, she will have long been familiar. I
do not therefore make any adjustment to reflect that the Claimant will
substitute the Echelon foot for the Meridium.
38.
I therefore allow the cost of the Meridium for life. I have also been
asked to rule on the cost per six year cycle of the Meridium. Although Mr
Audland queries the pleaded cost (£35,260) in his closing submissions he does
not appear to advance an alternative costing. Although there was evidence from
Mr Nieveen that the cost of the microprocessor element of the Meridium was set
to increase by 6%, I make no allowance for the increase. The evidence was
vague (and appeared to relate only to the microprocessor element of the
prosthetic). The cost per six year cycle is therefore as pleaded in the
Schedule at £35,260.
39.
I also accept the Claimant’s case that her reasonable needs include the
provision of an Elation for life. Given my conclusion that the provision of the
Meridium prosthesis is reasonable, then, terminating the claim for the Elation
at age 78 would have the effect that the Claimant would be deprived of a
cosmetically acceptable limb from that age. There is no logical justification
for such a limitation. The Claimant is reasonably entitled to a cosmetically
acceptable prosthesis for life.
ii) Water Activity Limb
40.
The cost per five-year cycle is agreed at £13,375. I accept the
Defendant’s argument that it is unlikely to be purchased in the last year of
life. The appropriate adjustment to the multiplier should therefore be made.
iii) Sports Activity Limb
41.
Again, this is a topic in which the division between the parties has
narrowed considerably during the trial. The Counter Schedule disputed the
claim for a running blade in its entirety on the basis of the joint view of
Professors Saleh and Hanspal that high impact sport was not recommended.
However, the cost of the blade is now admitted by the Defendant, but to age 58
years only, in comparison with the claim which is made, to age 70 years. The
Defendant submits that between ages 58 and 70 years it is likely that the
Claimant will undertake lighter sports (rather than high impact) and seek to limit
or rationalise the number of prostheses which she uses. It is argued that, from
age 58, the Claimant will purchase a more versatile “sports” prosthetic such as
a Rush Foot which could be used for both water and dry land activities. This costs
around £5,575 more per five- year cycle than the cost of the water activity
limb which has been allowed for life: the claim for the sports activity limb
from age 58 years is therefore limited by the Defendant to this “additional”
cost per cycle.
42.
I accept that a number of amputees may wish, or end up, slimming down
the number of prosthetics which they use and have to transport from place to
place. However, I do not find that this Claimant will fall into this cohort.
Sport has been and will remain central to her life. If anything, it is more
important to her now given her need for, as she put it, “release”. Between age
58 and 70, as the Defendant accepts, she is likely to continue lighter sports
including swimming. Although the types of activity which she undertakes may
change during these later years, neither her commitment to sport nor wish to
compete is likely to dwindle. She will want to use the most appropriate prosthesis
for the sport in question. For these reasons, I do not find that it is either
likely that she will reduce the number of prosthetics or that it is reasonable
to impose a reduction upon her.
43.
I therefore find that the Claimant’s need for a sports activity limb is
as claimed to the age of 70 years. The multiplier will of course reflect that
she has already purchased a blade.
Aids and Equipment
44.
The parties require me to rule on a number of items of aids and
equipment. I deal with them below:
i)
Raised garden beds: the Defendant admits the claim as a “one off”,
single, purchase and disputes the need to rebuild the raised garden beds every
10 years. I accept the Defendant’s point. I see no reason why the raised beds
will need to be rebuilt every ten years. I note that no explanation is
advanced by Dr Willson in this regard. Therefore I allow the claim as a single
purchase.
ii)
Computer chair: this item is denied on the basis that the Claimant would
have purchased a special chair for computer use in any event. Alternatively,
it is contended by the Defendant that a suitable chair can be provided at a
fraction of the cost claimed (£850). I accept that the Claimant’s disabilities
make provision of a computer chair a reasonable need and that she would probably
not have bought a chair specifically for that purpose, but for her injuries.
Taking into account that Dr Willson accepted that there exists a range of
suitable chairs I allow the sum of £400 (with a replacement cycle of 5 years)
for the purchase of a computer chair.
iii)
Shower seat: the claim is admitted in principle but the cost is
disputed. Apparently the Claimant has purchased a shower seat at a capital
cost of £870. I accept that the cost of this item is unreasonably high.
Accepting that there exists a range of such items from the basic to the luxury,
I allow £450 for this item with a replacement cycle of 10 years.
iv)
Riser/Recliner chair: again the item is accepted to be reasonably
needed from the Claimant’s age 70 years but the cost is stated to be excessive.
I accept again that there exists a range of such items but allow a mid-point
figure between Ms Scandrett’s figure of £950 and Dr Willson’s figure of £1,500,
£1,225. I accept Ms. Scandrett’s evidence that the maintenance contract is
included in the price and make no separate allowance for that element.
v)
Profiling Bed from the age of 70 years: the need for a profiling bed is
admitted by the Defendant, but the cost claimed to be excessive. The competing
figures for the bed and mattress are £4,545 and £3,300. Again, Dr Willson
accepts that there is a range of beds and prices vary. I therefore allow the
sum of £4,000 for the bed with replacement every 15 years and maintenance and
servicing as costed by Dr Willson at £120 per annum. I agree with Mr Audland
that the claim for repeat purchases of the mattress should not be allowed given
the absence of any tissue viability issues and that a mattress would have had
to have been purchased in any event.
vi)
Hoist and Maintenance: there are differences between the parties as to
the age at which the Claimant will need a hoist and the type of hoist needed. Guided
by the evidence of Professor Saleh and Professor Hanspal, I find that the hoist
will only be needed during the last two years of life. I also note that
Professor Saleh stated that the Claimant would need “assistance” with
transfers. This is not a case in which the Claimant will be unable to weight
bear. On this basis I allow the claim for the Stand Aid (with costings
advanced by Ms Scandrett).
vii)
E-motion wheels: these are fitted to a manual wheelchair to provide
power assistance. They are claimed by Dr Willson from the Claimant’s age 70 on
the basis that it will be essential to protect the Claimant’s upper body. The
Defendant disputes the item and allows instead the cost of a scooter (which is
also claimed by Dr Willson). I accept that the choice is between the E-motion
wheels, or the scooter, but not both. This approach would be consistent with
the approach taken by Professor Saleh who recommends either a powered
wheelchair or E-motion wheels or a scooter, but not all three. I find that it
is more likely that the Claimant will use a scooter for longer distances,
rather than a wheelchair with power assistance. However, contrary to Mr
Audland’s submissions I allow the cost of the “all-terrain” scooter rather than
the basic/lightweight model which he allows. A more robust scooter will enable
the Claimant to take trips into the countryside, an activity which she enjoys.
I therefore allow the capital costs of a scooter (at £2,000), from age 75 years
and associated costs of maintenance and insurance.
viii)
Electric Bike: I do not allow this claim. The Claimant has recently
enrolled in a triathlon which involves a 3km cycle ride. She intends to
continue running for as long as she can and thereafter pursue lighter sports
for which appropriate prostheses have been allowed. For these reasons, I do
not find that she is likely to use an electric bike, nor that its purchase
would be reasonable.
Care and Case Management
45.
The claim covers the additional childcare, additional domestic chores
and the Claimant’s personal care needs due to her disability.
46.
I make the following preliminary points before dealing with the detail
of the claim:
i)
Mr Audland has impressed upon me the need to take into account that, but
for the accident, the Claimant would have returned to work for five days per
week; that her work would have involved a commute into Central London and to
Heathrow and would have involved a significant amount of travel including travel
away from home every couple of months for two or three nights and frequent
overnight stays whilst visiting other UK offices. Her work would, on occasion,
involve her in evening receptions or occasional late nights in the office. I
accept Mr Audland’s point that any uninjured child care costs, whether
commercial or gratuitous, must be reflected in the award which I make. The
point is however of limited significance. As I set out below, the real
difference between Dr Willson and Ms Scandrett is not so much the number of
hours of additional care now required by the Claimant but how that care is to
be delivered. I also bear in mind that Mr Arney, in his closing submissions,
concedes additional “uninjured” nursery costs (for two days per week) and an
annual sum of £1,000 for “uninjured” childminding costs until secondary school
age.
ii)
I heard evidence from Dr Catherine Willson and Ms Barbara Scandrett on
the topics of care and case management. Unfortunately, in her pre-trial
reports, when addressing both past and future care needs, Ms Scandrett had,
through no fault of hers, not taken into account the gratuitous care provided
by the Defendant on the assumption that such care was not recoverable. As a
matter of principle, she was correct. It is well established that a tortfeasor
cannot benefit from his own breach. However, Ms Scandrett had not been
informed by those instructing her that an agreement had been reached between
the parties that the usual principle would be displaced on the understanding
that the Claimant would not replace gratuitous with commercial care. The
effect of her approach was that she had not brought into account any care which
she considered would be provided by the Defendant. Ms Scandrett was only
instructed to provide a report to make good the deficiency just before trial.
Owing to her other commitments this further report was served hopelessly late
(only on the evening before she was due to give evidence). Although I was
asked to rule on the Defendant’s application for permission to rely on the
report, before I had had a chance to hear full submissions, Mr Arney proposed
that the issue be “parked” as any delay threatened to de-rail the, already
tight, trial timetable. On this basis I received the late Scandrett report into
evidence on the understanding that I would include my ruling in my judgment.
iii)
This is that ruling. I can deal with the issue in short terms. The
report was served, as I have said, very late and for no good reason. As Mr
Arney pointed out to me the mistake should have been identified by the
Defendant’s legal team in the autumn of last year at the latest. Since then,
the Defendant has had many opportunities to rectify the mistake but delayed
until the last moment to do so. All that Mr Audland was able to do was
apologise to the Court. However, given the importance of the subject matter of
the report and the value of the claim, I am not and would not have been (had I
heard full submissions) prepared to refuse permission on lateness only. I was
concerned to know whether Mr Arney would be able to deal with the points raised
in the report during the currency of the trial timetable or whether he would need
to re-call expert witnesses. Had I heard full argument and had Mr Arney been
able to persuade me that he was not able to deal with the points or that expert
witnesses would have had to have been recalled, then I would not have granted
permission. However, Mr Arney informed me that he would be able to deal with
the report in full without recalling expert witnesses, and this proved to be
the case. I therefore give permission to the Defendant to rely on the report
of Ms Scandrett of 1st May 2018. Any costs consequences are to be
dealt with later.
iv)
One final matter arises in connection with Ms Scandrett’s late report.
She stated in that report that the Claimant had told her, during the course of
her assessment interview, that she did not wish or intend to have commercial
staff in the home and that the couple intended to care for Ossian themselves.
Disclosure was given of Ms Scandrett’s handwritten notes of the interview which
painted a rather different picture. There were a number of references to the
family guarding its privacy and to the wish to keep intrusion to a minimum. In
respect of caring for Ossian, Ms Scandrett noted down “The couple know how
they want to live their life. They are private and do not wish interference.
They like to make decisions and will instigate options. They have specific
ideas about bringing up children….. they have a good friend set and have used
advice etc.. don’t trust nannies generally would want personal introduction.
She believes that she will know if she needs help. Likes to make own decisions”.
Ms Scandrett appears therefore to have misinterpreted what she was told by the
Claimant. The Claimant, although acknowledging that she was a private person,
of firm views who would make her own decisions, was not stating that she would
not engage commercial childcare; only that she would be cautious in her
selection of the carer. I bear this in mind when considering the various
elements of the claim.
Number of Children
47.
The first issue for me to decide is the number of children which the
Claimant is likely to have. Her case is that she intends to have only one more
child (in addition to Ossian who was born in June 2016). The Defendant’s case
is that it is likely that the Claimant will go on to have two further children,
either through choice or as an unintended consequence of IVF.
48.
The Claimant told me that she conceived following IVF using a donated
egg. She had been successful at the first attempt using this method but the
process of conception had taken time as it involved going on an egg donor
register, waiting to get to the top of the list and then waiting for a donor of
similar hair colouring to become available. In her witness statement of May
2017, the Claimant had said that the “plan is to have at least another baby
via the same method, but ideally, 3 children altogether (in addition to
Malcolm’s daughter) is what I would like.. that has always been the plan”.
She told me at trial however that she had changed her mind and now only
intended to have one more child. She said that, by trial, she had had more experience
of being a working mother and she did not now think that she had sufficient
energy reserves to work and bring up three children. She told me that she was
also conscious of Mr Carpenter’s age and her own age, neither are getting any
younger. She recognised that there was a chance of multiple pregnancy using
IVF but told me that the Lister Hospital did its best to keep the risk to a
minimum.
49.
This discrepancy between the Claimant’s witness statement and her
evidence in chief was, submitted Mr Audland, a further example of the Claimant adjusting
her evidence to make the most of her claim. There was, he submitted, a financial
advantage to the Claimant in departing from her original case that she wished
to have three children as, if accepted by the Court, it would make the
Defendant’s argument that she would have moved house in any event all the
stronger. I do not accept Mr Audland’s point. There was a good reason for the
change in account. The Claimant had, by the time she gave evidence at trial,
been back at work for four days per week for some months and had the benefit of
the experience of an additional year caring for Ossian in conjunction with other
commitments. This is, in itself, a sufficient and wholly credible explanation
for the change in attitude to the size of her family. Furthermore, whilst I
accept that the argument that the Claimant would have moved to a larger house
in any event would be strengthened if she were to have three children, it also
follows that, with three children, other heads of loss such as holiday costs,
childcare costs and possibly transport costs would be appreciably higher. I do
not accept that, in changing her mind as to how many children she will have,
the Claimant has undertaken the sort of reckoning exercise which Mr Audland by
implication submits she must have done. I think the answer is far simpler: she
has had the benefit of the experience of an additional year as a working
mother.
50.
I therefore accept the Claimant’s evidence to me that she intends to
have one further child. Mr Audland further submits that if I were to make this
finding then I should take into account the risk of her having two or more
(either by intention or because of the risks with using IVF) and apply a
percentage chance to those risks. I accept that conception is not a certainty
for the Claimant. Equally, as the Claimant accepts, given the need for
assisted conception, there is a risk of a multiple pregnancy. The Claimant said
that at the Lister Hospital the risk of multiple pregnancy was in the order of
9% or 10% but, other than this anecdotal evidence, there is no evidence to
assist me in quantifying the risks on either side: to do so would have required
expert evidence. All that I can conclude with a measure of confidence is that
the risks on both sides exist. Given the absence of any evidence, I find that
the risks are equal and neutral: they effectively cancel each other out. This
was Mr Arney’s submission, and I accept it. I therefore analyse the competing
submissions on care, including childcare, on the basis that the Claimant will
go on to have one further child. As to the timing of the birth of the further
child, I see no reason to depart from the submission that the Claimant’s second
child will be born in around 18 months’ time, in early 2020. By this time,
Ossian will be aged 3.5 years old.
51.
Against this background, the following issues fall for my determination:
the reasonable additional childcare and other care needs flowing from the
disability, how such care will be delivered and the reasonable additional
personal care the Claimant will require, particularly during the later years of
her life.
52.
The claim is divided into periods bookended by the age of the Claimant’s
children and the predicted deterioration in her condition in later years.
Period One: from trial to the birth of the Claimant’s
second child.
53.
I have already accepted the proposition that the Claimant’s second child
is likely to be born in around 18 months’ time, that is, in early 2020. During
this period the Claimant will continue to work for four days per week and Ossian
will continue to attend nursery for 3 days per week. The care experts were in
agreement that the Claimant’s injuries generated a need for extra childcare
(particularly to carry and lift Ossian safely).
54.
During this period the Claimant seeks 22 hours care per week comprising
of 15 hours of commercial care (provided by an agency mother’s help) and 7
hours of gratuitous care. This approach compares will the allowance made by
Ms Scandrett in her oral evidence (and accepted in closing submissions) that
the Claimant’s reasonable childcare and domestic care needs require the
provision of 20 hours additional care. Ms Scandrett’s opinion is that the
Defendant is likely to shoulder the burden of the additional care during this
period and therefore gratuitous care rates should be applied.
55.
There is therefore no significant difference between the parties as to
the number of hours of additional care required. I accept Dr Willson’s,
slightly higher, assessment of 22 hours additional care per week given that during
this period it is likely that the family will be moving house and the Claimant
occupied with sourcing equipment whilst continuing to work. I also accept, for
similar reasons, that it is reasonable for her to purchase commercial care for
15 hours per week at housekeeper rates with the balance of care provided by the
Defendant. In summary, I therefore allow the claim as formulated by the
Claimant during this period.
Period Two: Maternity Leave
56.
During the Claimant’s maternity leave (with her second child) Dr Willson
proposes that the Claimant reasonably requires the services of a full-time
nanny/housekeeper for weekdays (at a cost of £53,000) plus additional family
help to be provided by Mr Carpenter for 14 hours per week during the first six
months of maternity leave (total: 54 hours per week) and for 7 hours per week
during the second six months (total: 47 hours per week). Ms Scandrett does not
differentiate the period of maternity leave and allows only 31 hours per week
of gratuitous care. There is therefore a considerable difference between the
parties.
57.
I make the following observations:
i)
I accept that it is reasonable to differentiate the Claimant’s
reasonable additional care needs during her maternity leave from those following
her return to work. She will have particular difficulties carrying a new baby
safely and there will be a large number of baby-related additional domestic
chores which her pain levels and associated fatigue will make it difficult for
her to perform. However, I also bear in mind that Ossian will be in nursery
for a substantial part of the day and that some of the Claimant’s functional
limitations will be alleviated by the fact that, by that time, she is likely to
be living in her new home with a lift and she will have the benefit of a
Meridium prosthetic (conferring a more stable gait and alleviating to an extent
her fatigue) and various other items of equipment.
ii)
There is also force in Mr Audland’s submission that, during the course
of her maternity leave with Ossian, she did not engage a nanny. I recognise
that there is a considerable difference in caring for a single baby as opposed
to a baby and a young child, however for much of the time during the day when
the notional nanny is engaged, Ossian will not be in the house. Likewise,
there is force in Ms Scandrett’s opinion that the presence of a full-time nanny/housekeeper
in the home during weekdays would be intrusive for both the Claimant and the
Defendant and would run counter to the Claimant’s wish to maintain a degree of
family privacy.
iii)
For the reasons set out in (ii) above, I do not find that it is
reasonable for a full-time nanny/housekeeper to be engaged, or that it is
likely as a fact that the Claimant will choose to engage such a person to help
her. That said, I find that there will be a reasonable need for some considerable
commercial input to assist the Claimant in domestic and childcare tasks which
the Claimant is either unable to do safely by reason of her physical disability
or is too tired to do. I find that a reasonable assessment of this need is by
the provision of 25 hours per week of a “mother’s help” at £16.50 per hour.
Over the course of the year of maternity leave, this generates a final figure
of £21,450.
iv)
I also agree with the Claimant’s formulation of gratuitous care over the
course of the year. Given her disability, it is reasonable for the Defendant
to pick up the slack (to use the Claimant’s words) which he would not otherwise
have done and I accept that a large part of the overnight duties and weekend
duties will inevitably fall on the Defendant’s shoulders due to the Claimant’s
disability. I therefore allow the claim for gratuitous care as formulated by
the Claimant.
Period Three: Childcare to the Youngest Reaching
Secondary School Age
58.
Both parties are in agreement that the next period under consideration
extends from the end of maternity leave until the Claimant’s youngest child
reaches secondary school age. During this period, the Claimant seeks 35 hours
per week of additional help (30 via a mother’s help and 5 hours of gratuitous
care). The Defendant submits that 31 hours of gratuitous care constitutes
reasonable provision.
59.
Again, there is no great difference in terms of the number of hours
claimed. I accept Mr Audland’s submission that, as Dr Willson had initially allowed
only 7 hours per week for the period between the youngest child reaching
primary school until secondary school age, Ms Scandrett’s assessment is overall
to be preferred. The point made by Mr Audland is that to seek precision as to
the number of hours claimed per week is artificial: there may be times when
the Claimant needs more hours per week of care, other times when she needs
less. I agree with him. What I should seek to do when considering the matter
is to ensure that there is reasonable provision overall. I therefore allow 31
hours of care during this period.
60.
As to the split, if any, between gratuitous care and commercial care, I
accept that some agency care is reasonable and that the cost will be incurred
as a fact. I do not accept however that only one seventh of the care will be
gratuitous. Although I did not hear from Mr Carpenter I have no doubt that he
will wish to provide more care than Dr Willson allows, in spite of his age and
the agreement between the couple that he should keep a life of his own. I allow
20 hours of commercial care during this period, using the mother’s help rates
(£16.50 per hour) and 11 hours per week gratuitous care.
Period Four: to the Claimant’s age 80 years.
61.
During this lengthy period, the Claimant seeks 7 hours of commercial care,
the Defendant submits that 5 hours of gratuitous care is reasonable.
62.
I make the following observations:
i)
Care during this period must be purchased care given Mr Carpenter’s
age. It is too speculative to suggest that he will be able to provide the Claimant
with reliable care of the sort contemplated by the experts (shopping, fetching
and carrying heavier objects) when he himself may be in his late 70s or early
80s.
ii)
Given that during the latter part of this period, on the evidence of
Professor Saleh and Professor Hanspal the Claimant will need to use a
wheelchair at times for outdoor mobility, I allow the claim as pleaded at 7
hours per week. The multiplicand during this period is therefore £3,778.32.
Period Five: from age 80 years until the last two years
of life:
63.
The Claimant seeks commercial care of 14 hours per week, Ms Scandrett
allows 7 hours of commercial care. The competing multiplicands are £15,750 and
£6,264 reflecting not only the difference in the number of hours which are
claimed but differing rates (Dr Willson having for example allowed for
double-time over bank holidays). I allow the higher number of hours and the
higher rates formulated by Dr Willson. I bear in mind that during this period
the Claimant will be increasingly reliant upon wheelchair use for both mobility
indoors and outdoors. Her ability for example to go shopping, to clean and to
carry things is likely to be considerably reduced. Two hours of care per day
to provide assistance is reasonable. Dr Willson’s costings (reflecting as they
do the differing weekend and bank holiday rates) is the more accurate. I
therefore allow the claim as pleaded.
Period Six: last two years of life
64.
Given the Claimant’s prognosis, both experts agreed that an enhanced
level of care was required. Dr Willson’s opinion is that the Claimant’s
reasonable care needs should be met by way of a single live-in care at a weekly
cost of £1,500. Ms Scandrett considers that the Claimant’s care needs can be
met via 4 hours of agency care per day only.
65.
I find that live-in care will be required during this last period of the
Claimant’s life. It is likely that the Claimant will need assistance with
transfers, with toileting and with some aspects of her bedtime routine. It is
not reasonable to suggest, as the Defendant does, that the time of the
Claimant’s toileting, bathing or bed-time needs should be prescribed by the
carer’s schedule. Live-in care is reasonably required during this period.
66.
In her report Dr Willson gave a single figure and reference for her
proposed costings for live-in care but acknowledged in cross examination that there
was a range of costings for live in care from around £900 per week to £1,500
per week. She provided little justification for her top of the range figure.
Equally, Ms Scandrett provided little support for her claim that, if live in
care were to be needed, the weekly rate would be £820. I bear in mind that
London agency costs are likely to be high but also the Claimant’s needs in
later life which will not be of the most arduous. For example, there is no
evidence that the Claimant will not be able to assist in transfers – only that
she will need help to do so. On this basis I find that the weekly rate for
live in care is likely to fall towards the top end of the range, but not right
at the top. I allow £1,250 per week.
67.
Finally, in respect of care, I have been asked to rule upon the
appropriate rate of payment for gratuitous care. The competing figures are the
NJC recommended Local Authority aggregate rates for home helps (the Claimant)
or the basic rate (the Defendant). I find the appropriate rate to be the basic
rate as the bulk of the care provided by the Defendant will not be during
unsocial hours, nor is it in the nature of an “on call” duty, nor can any of
his care be described as in any sense technical or of a quasi-nursing nature. The
parties have agreed that, whether aggregate or basic rates, there should be a
discount of 25% for the non-commercial element of the care provided. The rate
to be applied for the calculation of gratuitous care is therefore the basic
rate minus 25%.
Case Management
68.
The Claimant seeks an additional sum for case management. She claims 30
hours for initial “start-up” recommendations and thereafter an annual allowance
of between 10 and 15 hours plus provision for contingencies and crisis
management. When questioned on the need for case management, the Claimant
explained that, thus far, she has had the support of her solicitors in making
arrangements but after the litigation this help will obviously melt away. She
told me that she would use a case manager to help her make her childcare and
other arrangements in accordance with Dr Willson’s provision. The Defendant
disputes the need for case management in its entirety.
69.
In considering the claim I have borne in mind the following points:
i)
The commercial care costings above are based on agency rates, rather
than the lower rates associated with a direct contract between the Claimant and
carer. Assuming that an agency is used, then the agency will provide cover in
the event that a carer is ill or on holiday and take care of payroll and other
ancillary elements of the care regime.
ii)
I have already expressed my own view of the Claimant’s character. She
is a person of independent mind who makes her own decisions. I doubt that she
will rely upon, or wish to rely upon another person (other than Mr Carpenter) for
the purpose of interviewing and recruiting a person to assist her in the home
or to care for her children. Nor will she need assistance in recruiting
therapists or selecting equipment. She is more than capable of doing so
herself (she tracked down Mr Haidar herself via Heather McCartney) and will
doubtless do so in the future.
iii)
Equally, I recognise that particularly in later years, when Mr Carpenter
may not be on hand, or able to support her, there may be a need for some
professional input to deal with agencies, therapists and in relation to
equipment.
iv)
I therefore allow only “contingency” case management provision of 50
hours at £160 per hour producing a total figure of £8,000.
Sports Massage
70.
This is the one, miscellaneous, item of therapy which remains in dispute.
The claim is valued at £72,626 over the course of the Claimant’s life. This
loss was claimed in the Schedule and supporting invoices for past sports
massage costs were disclosed (as I understand) at the appropriate time. Mr
Arney accepted however the topic had not been addressed in the Claimant’s
witness statement as it should have been. Upon Mr Audland’s objection to the
Claimant making good the deficiency in her oral evidence, I indicated that I
would hear the evidence and permit the parties to consider whether any further
expert evidence (from physiotherapists) was needed before ruling. In the
event, neither party chose to deploy further evidence and Mr Audland indicated
that he was content to deal with the matter in his closing submissions.
71.
The Claimant told me that she has had sports massage on a regular basis
over the course of the past years. It is a painful therapy, intended to
support the upper body musculature which comes under strain when using crutches.
She had found it to be effective in relieving pain in her shoulders and neck
and has therefore persisted with the therapy even though it was not pleasant. Professor
Saleh supported sports massage as a complement to physiotherapy (which was
intended to target acute and specific problems rather than support muscles and
joint movement generally).
72.
Mr Audland submits that the claim should be rejected: the
physiotherapists (from whom I did not hear, as there was no point of
disagreement between them) had made annual provision for physiotherapy and there
was no reasonable need for any additional musculoskeletal therapy. He reminded
me of Professor Saleh’s evidence that the benefits of sports massage could also
be obtained from physiotherapy and that physiotherapists could provide both
physiotherapy and sports massage.
73.
I accept that the sports therapy is reasonably needed in addition to the
claim for physiotherapy: the agreed physiotherapy provision is intended to address
acute soft tissue injuries rather than maintain muscle condition generally. The
Claimant finds the sports massage therapy helpful and I accept that she would
not persist with the therapy if she did not perceive a benefit. I therefore find
that there is a reasonable need for the sports massage and accept the claim as
pleaded.
Holidays
74.
The claim for additional holiday costs is just over £747,000. It is
therefore an unusually valuable component of the claim. Every element is in
dispute. I deal with each in turn:
Extra Leg Room?
i)
The first question which I am asked to determine is whether there is a
reasonable need for the Claimant, when travelling by plane, to have extra leg
room and if so whether the additional cost of the upgrade should be limited to
long haul flights or include shorter journeys. The Claimant told me that she
finds it uncomfortable to wear her prosthesis for longer flights and that she
therefore likes to take the prosthesis off and balance her leg stump on the
prosthesis. She is unable to remove the prosthesis easily and discreetly in
the usual cramped conditions of economy class. Professor Saleh and Professor
Hanspal accepted that due to the relatively stiff right ankle and limited
active flexion of the prosthetic foot, the Claimant would likely find it
awkward and uncomfortable sitting in the limited space available in economy
class with the prosthesis on.
ii)
The Defendant submits that there is no reasonable need for extra leg
room: even in economy she could discreetly remove the prosthesis under cover of
the airline blanket. Alternatively, with the provision of the Meridium (with
its flexible ankle) she would be reasonably comfortable keeping the prosthesis
on.
iii)
The Claimant’s evidence is compelling. I accept that sitting for a long
time with the prosthesis on is uncomfortable. She gave evidence to me that, at
the end of the day, one of the first things that she does is remove the
prosthesis and massage the stump. It is not reasonable to expect her to
struggle to remove the prosthesis under the airline blanket. Even if she could
do so, the cramped conditions in economy class would make balancing the stump
on the prosthesis precarious, embarrassing and difficult. I therefore find
that for all long-haul flights the costings should be on the basis of premium
economy or equivalent.
iv)
As for shorter flights, Professor Saleh said that it would be reasonable
for the Claimant to sit for a period of up to two hours with the limb on. Dr
Willson observed that this period should factor in time spent on the runway
waiting for take-off and waiting to disembark. I accept this evidence although
bear in mind that such timings must always be approximations. I therefore find
that it is reasonable to award the additional costs of flight upgrades for all
flights, save for UK flights and those to more proximate European destinations,
including flights for skiing and to Oslo (where the Claimant has family).
Number of Flights per Year?
75.
The Claimant seeks the additional costs associated with two long haul
flights and 5 short haul flights per annum. Even taking into account the
Claimant’s passion for travel, this is excessive. With a young family, I doubt
that the Claimant will undertake two long haul holidays every year,
particularly when she is limited to travelling with them only during school
holidays. I find that it is reasonable to allow the additional costs of one
long haul trip per year only. As for short haul flights, the claim for five
such trips is overstated, particularly given that some of those trips are
likely to be for skiing, or local European destinations. I allow the
additional disability related costs of two short haul flights per year.
Children and Family with Her?
76.
The claim includes the costs of the flight upgrades for all of the
Claimant’s family. The Claimant told me that the journey is part of the
holiday and that it would seem odd to her not to sit with the rest of her
family; also that it would not be practical for the Defendant to travel
separately with two young children. Mr Audland submitted that the Claimant
could always walk along the cabin to see her children who would be sitting with
the Defendant anyway. I accept the Claimant’s submissions. The Claimant would
in her uninjured state have travelled with her husband and children and it is
reasonable to permit her to do so in her injured condition. Mr Audland further
submits that if I were to allow the additional costs of the whole family being
upgraded, then I should impose a cut off of the children reaching the age of 5
years. I reject this submission for the same reasons as I do the challenge in
principle. The costs should include the additional costs of the children’s
upgrade to their age 18. From that age, if the children do holiday with their
parents it would be reasonable to expect them to sit separately; some children
may even chose to do so.
With a Nanny?
77.
The claim includes the additional cost of taking a nanny on holiday. Dr
Willson justifies the additional cost on the basis that the nanny would assist
in managing childcare, juggling traveI arrangements, caring for the children
and managing the large volume of luggage. The Claimant supported the claim on
the basis that holidays were for relaxation and given her fatigue level she
would need childcare support in order to relax. I do not accept that the
Claimant will in fact choose to take a nanny on holiday or that it is a
reasonable expense. I take into account that given her busy life the Claimant
is likely to wish to spend time with her family including her children on
holiday. No doubt, like other families, holiday destinations will be chosen
with children, including entertainment and associated childcare, in mind. The
presence of a nanny would be intrusive. Nor do I find it plausible given my
impression of the Claimant that she will involve the nanny in making travel
arrangements. She will make arrangements, or the Defendant will do so. Nor is
it reasonable to take a nanny on holiday to perform the function of a glorified
luggage carrier.
Additional Flight Costs
78.
The costs proposed by Dr Willson in her report and as reflected in the
Schedule assume an additional upgrade cost for a long-haul flight of £2,000 per
person and £250 for each short haul flight. On my assessment that it is
reasonable to allow for the claim in respect of one long haul flight per annum
and 2 short haul flights, then the cost per annum would be £2,500 per person.
Ms Scandrett offered a global figure of £2,000 per annum for additional flight
costs.
79.
There are a number of difficulties with both sets of costings. First,
neither of the care experts (who purported to give expert evidence on the topic
of additional flight costings) provided any reliable evidence to underpin their
proposed figures. Nor from a common sense viewpoint could there be. All will
depend on the destination, the deal being offered by the airline at the time of
booking and the time of year of travel. Second, Mr Audland submits with
considerable force that neither care expert is qualified to give expert
evidence as to the additional flight costs. I accept this point. Neither Dr
Willson nor Ms Scandrett are in any better position to advise the Court on
holiday costs than a lay-person. I therefore put the Willson/Scandrett
costings to one side.
80.
The only evidential basis upon which I can approach the quantification
of the additional flight costs is the travel costs which have, in fact, been
incurred by the Claimant over the course of the past 3 years. The Claimant has
during that time travelled to Japan, South Africa, Mauritius and Los Angeles
using premium economy or world traveller plus. The evidence discloses that the
average additional cost per person per trip is in the order of around £700,
including baggage allowance. Even taking into account that the Claimant may
have enjoyed some discount as a consequence of her father having been a BA
pilot, the figures produced are far lower than those advanced on her behalf in
the Schedule.
81.
Given the limited state of the evidence, my valuation of the additional
flight costs must necessarily be impressionistic. Mr Audland advanced an
annual figure of £600 per person per annum. Given that the additional costs are
to include one long haul and two short haul flights, the figure is too low. I
allow the additional average cost of flights at £1,250 per person per annum. I
accept Mr Audland’s point that children under two years typically travel free,
and the final costings should reflect this.
Additional Accommodation
82.
The Claimant seeks £3,000 per annum in respect of additional
accommodation costs associated with the Claimant’s disability. The claim is
supported by Dr Willson on the basis that it is reasonable for the Claimant to
have a ground floor room at an additional cost of £500 per week. Ms Scandrett
for her part allows £2,000 per annum. Both appear to have simply plucked
figures from the air and their evidence is vulnerable to the same challenge
made in respect of additional flight costs. Neither of them is an expert on
the topic. I have not therefore found their evidence to be helpful. The
Claimant herself considered £1,500 an appropriate additional annual cost for
holiday accommodation.
83.
In fact, there is no evidence that, thus far, any additional accommodation
costs have been incurred by the Claimant on her holidays. However, I accept
that, particularly in her later years, the Claimant will probably incur some such
additional costs due to her need for ground floor accommodation. I therefore
allow some additional costs from the age of 70 years (when on the agreed
Saleh/Hanspal evidence, the Claimant will be using a wheelchair for some
outdoor mobility). From this age, I allow the annual sum of £2,000.
Other Increased Holiday Costs
84.
The final point that I am asked to rule upon in connection with holiday
costs is the additional costs of taxis and car hire, additional baggage costs
and equipment hire. Dr Willson’s figure is £2,600 per annum and Ms Scandrett’s
figure is £1,000 per annum. I bear in mind that it is likely that in any event
the Claimant would have used taxis to get to the airport or to get to an
airport rail link and that some taxi travel at the destination would have been
used. Equally, I accept that some additional taxi costs will be incurred on
the holiday and that there will be some additional baggage charges also. I
therefore allow the claim in the lower figure advanced by Ms Scandrett of
£1,000 per annum.
Transport and Travel Costs
85.
The claim for additional transport and travel costs is £399,965. Again,
it is a high claim with many elements in issue.
Increased Vehicle Costs
86.
The claim is advanced on the basis of the immediate need for a car which
is (a) larger than that which she would otherwise have owned and (b) has a
higher chassis to make it easier for her to get in and out. In her report, Dr
Willson supports the immediate need for a car with a higher chassis to
facilitate and maintain independent transfers and, in later years when she
becomes more reliant upon a wheelchair, a car which is also larger (to
accommodate wheelchair and prosthetics). She also supports the need for a
vehicle with automatic transmission. Dr Willson does not advocate the need for
any particular model, or provide costings, as, she reports, the Claimant’s
needs are complex and there exists a range of potentially suitable vehicles.
She therefore has recommended a needs assessment to be undertaken at a
specialist mobility centre.
87.
In fact, no needs assessment has taken place. It appears that the
Claimant dispensed with the assessment having purchased an Audi Q5 which she considered
suited her immediate and medium term needs. The additional costs associated
with the purchase of the Audi Q5 are pleaded at £9,000 per purchase
representing the difference in price between the Audi Q5 and the price of an
Audi Avant, or similar, which the Claimant would have purchased in any event.
In later years, the claim is formulated on the basis of the difference in cost
between a VW Caravelle and an Audi Avant, a difference of just under £20,000
per purchase.
88.
Mr Audland rejects the claim for any additional medium term capital
costs. As to the claim for a larger car, he points out that, in the medium
term, the need is not supported by Dr Willson; that the Claimant accepted that
she would have bought a reasonably sized vehicle anyway because of the baby
equipment; and any additional space needed for prostheses could be accommodated
by a roof stowage system. As for need for a higher chassis vehicle, he reminds
me that the psychiatrists accepted that a further course of cognitive therapy
would be likely to lead to a good recovery; that the medical experts supported
the need for automatic transmission but not a higher chassis; and that when Dr
Willson met with the Claimant for the purposes of the report, the Claimant was
still driving her Golf and she reported no difficulties. As for the proposed
purchase of a VW Caravelle in the long term he observes that this claim has no
evidential underpinning whatsoever.
89.
There are a number of problems with the claim for additional disability
related vehicle needs in the medium term. The Claimant accepted that she would
have needed to buy a larger vehicle in any event to transport children and
their paraphernalia (although I accept that she said that she did not think
that the family would have bought a car as large as an Audi Q5). The claim for
a larger car is vulnerable to the challenge that any disability related
equipment could reasonably be contained in a roof stowage system. As for the
need for a car with a higher chassis, I accept Mr Audland’s point that both Dr
Mallett and Dr Baggeley considered that a further course of therapy would
produce a good response. Mr Arney argues that this conclusion does not mean
that all of the Claimant’s symptoms will resolve. I accept this, but note that
neither Dr Baggeley nor Dr Mallett suggested that such residual anxiety
symptoms would be alleviated by her using a car of particular size or
specification. I therefore do not find that there is a reasonable disability
related need for a larger car or a car with a higher chassis.
90.
Even if I had found otherwise, there remains the fundamental problem
that the associated additional claimed costs are just not substantiated. Dr
Willson made clear in her report that there exists a range of potentially
suitable cars, hence her proposal that there should be a specialist
assessment. It does not follow that, had an assessment been undertaken, a car
costing more than an Audi Avant would have been recommended. I do not find
that the Claimant’s personal selection of a vehicle is an adequate or
reasonable substitute for a specialist assessment. Nor is this a topic where judicial
nous or common sense can be legitimately used to plug the gap in the evidence.
Research, or specialist knowledge, is required: hence Dr Willson’s proposal
that an assessment be undertaken.
91.
For all of the above reasons I therefore reject the claim for additional
vehicle costs in the medium term.
92.
As for the claim for the additional capital costs associated with the
purchase of a “people carrier” such as a VW Caravelle, I accept Mr Audland’s
submission that there is no rationale for this vehicle (rather than any other)
being advanced in the Schedule. It is not based on any specialist
assessment. Mr Arney sought to provide the evidential basis for the claim by
drawing my attention to the Claimant’s statement of truth in the Schedule and
her confirmation that the document was a fair representation of her claim for
future losses. This does not answer the point, any more than in respect of the
claim for the Audi Q5, that there will be a range of suitable vehicles, no
doubt with a range of costings. The claim for the Caravelle therefore founders
for the same reason as the claim for the Audi Q5 and I reject it.
Rate of Vehicle Replacement
93.
The Claimant claims that, because of her disability, she will need to
drive a reliable car and will therefore need to replace her car at more
frequent intervals. She told me that she would, before her accident, have
replaced her car relatively infrequently perhaps every 6 or 7 years or so, but
will now need to replace her car every 3 years. Dr Willson supported the claim
on the basis that the Claimant would find it more difficult to manage because
of her mobility problems if she were to break down at the side of the road with
the children in the car. Mr Audland rejects the claim on the basis that the
Claimant would have wanted to drive a reliable family car anyway and she will
benefit from AA or RAC roadside cover anyway in the event of breakdown.
94.
I do not find that the need for more frequent replacement of vehicles is
made out on the evidence. I accept the Defendant’s submission that the
Claimant would, now that she has a family, want a reliable car in order to
minimise the risk of roadside breakdowns. Nor do I find that the Claimant is
at any greater risk, in the event of the breakdown at the side of the road,
than any other person, with or without children. Dr Willson’s scenario of the
Claimant struggling along the hard shoulder, children in tow, to find help at
the nearest service station did not ring true to me. The Claimant will
doubtless use her phone to call for help from the AA or RAC. I do not see her
as being in any way disadvantaged in this respect by reason of her disability.
I reject the claim for more frequent replacement vehicles.
95.
I allow the claim for additional transport and travel costs in the
following respects:
i)
Automatic transmission at £1,000 per annum.
ii)
Hand Controls: these are admitted in principle by the Defendant, but
only as a contingency. I find it is reasonable to allow for these, as set out
in the Schedule.
iii)
Stowage and hoist systems: I allow both of these items. The costings
for the boot hoist are set out in the Schedule and those for the stowage
systems in the Scandrett report (including removal and refit).
iv)
Increased roadside rescue costs at £37 per year.
v)
Additional mileage: this is claimed at £580 per annum on the basis that
from age 75 the Claimant is likely to use her car more, given that she will be
increasingly reliant upon a wheelchair by that age. This is a reasonable claim
in principle, although I allow only £510 pa on the basis of the additional
running costs associated with a lower cost vehicle.
vi)
Taxis: I accept that the Claimant will be more reliant on taxis than she
otherwise would have done, for work and leisure purposes. There is no evidence
that the Claimant will need to use a wheelchair accessible taxi in later years.
I allow the claim at £1,560 per annum throughout life.
Loss of Earnings:
96.
The Claimant seeks £766,168 for lost earnings from her career in travel
marketing. The claim is formulated using the Ogden 7 methodology in the
following way:
i)
The claim assumes uninjured net annual earnings of £57,076, calculated on
the basis of the Claimant working 5 days per week averaged over the course of a
working life to age 67 years. This annual figure is higher than the Claimant’s
pre-accident net annual earnings of £41,712. Mr Arney submits that the
Claimant is ambitious and would have moved from job to job seeking promotion as
and when opportunities to improve her remuneration package presented. Mr Arney
submitted that the appropriate bracket for annual average gross earnings over
the course of the Claimant’s life was between £70,000 and £100,000, a range
which reflected the salary associated with such jobs as Editor in Chief,
Editorial Director, Creative Director and/or Content Marketing Lead positions.
He has then adopted a mid-point in that range, of £85,000, which he has then netted
down to £57,076. Mr Arney assumes an uninjured retirement age of 67. He
applies the Ogden Table C reduction factor for an employed, able-bodied woman
educated to degree level of 0.89 to produce an uninjured working life
multiplier of 22.15. This produces an uninjured net earnings figure over life
of £1,264,000.
ii)
From this figure, Mr Arney then subtracts the Claimant’s injured net
earnings over life. Based on her current four-day week, that figure is £33,360
pa. He applies a multiplier of 14.93 derived from the arithmetical multiplier
subject to a reduction factor of 0.6 (Table D of Ogden 7).
iii)
In respect of both reduction factors applied, Mr Arney submitted that
there would be reasonable grounds for adjustment: upwards in respect of Table C
and downwards for Table D. In particular he submits that the Table D reduction
factor could lawfully go down much further as, as an amputee, the Claimant is
more than averagely disabled and more disabled than the population sample on
which the Table D reduction factor is based.
97.
The Defendant challenges both the assumptions upon which the Claimant’s
case is founded and the methodology.
i)
As to the Claimant’s uninjured retirement age, the Defendant contends
that it is more realistic to adopt a multiplier based on a retirement age of
65, by which time the Defendant would be 81 years old, rather than 67. Save
for this point, he accepts the Claimant’s approach to the uninjured multiplier
based on a discount factor of 0.89.
ii)
In respect of the multiplicand for uninjured net average earnings, Mr
Audland rejects the submission that the Claimant would have been promoted. He
argues that there is no reliable evidence upon which I could reach such a
conclusion. Typically, he submits, there should be some supporting evidence
either from an employment expert or from the Claimant’s employer or a senior
colleague and that, in the absence of some such evidence, the proposal that the
Claimant would have been promoted and would have earned a net annual salary of
over £57,000 is nothing more than speculation.
iii)
As to the Claimant’s residual earnings multiplicand, Mr Audland submits
that there is no good reason to suppose that the Claimant will never return to
a five-day working week. Mr Audland has drawn my attention to the comment
which the Claimant made to one of the experts that she was contemplating a
return to a five-day week and to the joint view of Professor Saleh and
Professor Hanspal that she was physically capable of working a five day week.
Mr Audland submits that I should reflect the Claimant’s possible return to a
five-day working week by quantifying the chance of this happening.
iv)
Mr Audland also challenges the application of a reduction factor to the
multiplier for residual earnings. He argues that this amounts to double
recovery for the Claimant in that the impact of her disability is already reflected
in the difference between the uninjured and injured multiplicands. Alternatively,
he submits that I should adjust the reduction factor in Table D upwards. This
would be a legitimate and lawful approach and the course adopted by the judge
in Connor v Bradman [2007] EWHC 2789.
v)
Alternatively, he submits that if I were to conclude that the Claimant
was more likely than otherwise to lose her job, or remain unemployed for longer
by reason of her disability, then this should be reflected in a modest lump sum
award of £40,000 to reflect her handicap on the labour market.
vi)
He also submits that I should deduct a further sum of £26,247
representing the saving in travel costs which is associated with the Claimant
having a Freedom Pass due to her disability.
Uninjured Retirement Age?
98.
I have already set out my views of the Claimant’s character. She is
dynamic and ambitious. Her CV demonstrates that this extends to her work
also. She has worked virtuously continuously since leaving university. She
clearly enjoyed her work. Her enthusiasm is illustrated by her email to her
employer of December 2013 (before she had even been discharged from hospital)
in which she said “ I am hoping to return to work in some capacity before
six months is up. Whether it is from home or doing just a few days a week in
the office, I think I will find it hard to stay away for too long!... I
understand the team has been working very well without me – hopefully not too well
so I have a job to do when I eventually return..”.
99.
Given her enthusiasm, I have no doubt that the Claimant would have
continued working throughout her life and that having a family would not have
diluted this resolve. I also find that she would have continued to work until
age 67 years. Although the Defendant fairly points out that the Claimant would
have wanted to spend as much time as she could with her husband, she told me
that, on the basis of his family history, she expects him to continue to be an
active travelling companion well into his eighties. I also take into account
that the Claimant will wish to continue working in order to fund her children
to the greatest extent possible and, at age 67 years, her youngest child will
have only just finished college.
Uninjured Net Earnings?
100.
I accept that over the course of her working life to age 67 years, it is
likely that the Claimant would have been promoted and increased her annual
income. She is clearly dynamic and had enjoyed an increase in her earnings
during the 3 years which she had been at Cedar from £52,000 - £60,000 gross.
For these reasons I do not accept that, in general terms, the proposition that
her earnings would have increased is so speculative as to lead me to ignore
it. There is however no evidence to support an uplift of the magnitude
advanced by the Claimant. The Claimant herself did not give evidence, save in
the most general terms, concerning her uninjured career growth. There is no
evidence of the range of jobs for which the Claimant would have been suitably
qualified; the sort of competition she would have faced; whether earnings for editorial
and marketing work tend to plateau and if so at what level.
101.
An expert may have been able to assist the Court. Certainly, a senior colleague
or comparator would have been able to do so. Although Ms Huxley, the work
colleague from whom I heard, spoke of the Claimant’s competence,
notwithstanding her injuries, she did not address the Claimant’s uninjured
earnings trajectory.
102.
In her witness statement, the Claimant referred to her colleague, Kerry
Smith, as a comparator (of similar experience and seniority). She said that
Kerry Smith had recently been promoted to the post of Editor in Chief, a post
which she thought she would have had an 80% chance of getting but for her
injury. However, it was clear from the documents which were put to her in
cross examination that Kerry Smith had not been promoted either in status or
salary; nor would the job have been open to the Claimant as it amounted to no
more than a small extension to Kerry Smith’s existing role. The Kerry Smith “promotion”
was therefore something of a red herring as a comparative exercise. It
certainly does not help me form a view on the Claimant’s uninjured earnings
capacity.
103.
Nor do I have reliable evidence of the Claimant’s earnings over the
course of the years before she joined Cedar in 2010. Although I note a
consistent working track record, I have not been told of the level of her income
from job to job from which I might extrapolate the graph of her earnings going
forward from 2013.
104.
I take into account that the Claimant’s salary had increased from
starting at £52,000 to £60,000 over the course of 3 years. This is a healthy increase
in salary for the timescale involved (even bearing in mind that the Claimant may
have been started on a low salary which was then increased to the market level
as she proved herself). It demonstrates that the Claimant was good at the job
and valued. It is likely that one way or another her earnings would have gone
up. I also bear in mind the Claimant’s drive and ambition. However, given the
limited evidence available to me my judgment on the Claimant’s future uninjured
earnings trajectory must necessarily be conservative. I find the Claimant’s uninjured
average net salary over the course of the next 24 years to be in the order of £49,000.
This grosses up to around £70,000.
Injured Earnings.
105.
The Claimant is currently earning £33,360 net from her working four days
per week and I accept this figure as the appropriate multiplicand. There was
evidence given to me by Ms Huxley (a work colleague) that the Claimant was
continuing to work effectively and to a consistent high standard. However,
given her pain, fatigue and the other demands on her finite resources I
consider that her earnings will now plateau at that level. I do not accept
that she will return to work for five days per week or that there is even a
chance that she will do so, particularly given my finding that she will have
another child.
106.
The real disputes in respect of her mitigating earnings are whether I
should apply an Ogden 7 reduction factor to the multiplier and, if so, what the
appropriate reduction factor should be.
107.
I reject Mr Audland’s submission that the application of a reduction
factor would amount to double recovery given the differential between the
Claimant’s injured and uninjured multiplicand. Although this was the approach
taken by Owen J in Clarke v Maltby [2010] EWHC 1201, his approach was
fact specific. More generally, the purpose of the Ogden 7 reduction factor is
to reflect that, by reason of a disability, a claimant is more likely to
experience periods of time when he or she is not working at all and that
periods of unemployment may be longer because of the disability. As the text
of Ogden 7 sets out at paragraph 33 “under this method, multipliers for loss
of earnings obtained from Tables 3 – 14 are multiplied by factors to allow for
the risk of periods of non-employment and absence from the workforce because of
sickness”. I therefore find that a reduction factor should be applied to
the multiplier. It does not amount to double recovery.
108.
As to the methodology, the text of Ogden 7 sets out that the reduction
factors in Tables A to D take into account employment status, disability and
educational attainment as the key factors (demonstrated by the Verrall/Wass
research) affecting a person’s future working life but that those factors are intended
to be used as a “ready reckoner” to produce an initial broad adjustment to the
multipliers. It is then legitimate to adjust the factors upwards or downwards
to reflect features of the particular case. Such adjustment is not
impermissible judicial tinkering. Given that there is no dispute but that the
Claimant is properly categorised as “disabled” such as to come within the Ogden
7 approach, the question for me is whether I should adjust the reduction factor
of 0.6 upwards or downwards to reflect the Claimant’s particular circumstances.
109.
In this context I note the following features which would justify a
deviation from a reduction factor of 0.6:
i)
Although the Claimant is properly to be characterised as “disabled”, there
are several ways in which the Ogden 7 approach contemplates that a disability
or health problem may affect day to day activities. None of the listed ways
truly captures the Claimant’s disability. Although mobility is listed as a
relevant feature, it is described by the example “unable to travel short
journeys as a passenger, unable to walk other than at a slow pace or with jerky
movements”; ability to lift or carry or move everyday objects is also listed,
but the Claimant does not come within the specifics illustrated there either.
Given that disability in this context embraces such a wide range of ways in
which a person’s employment may be threatened none of which, on their face,
reflect the Claimant’s disability, I might be inclined to accept Mr Audland’s
submission that on this basis alone, the reduction factor should be
significantly uplifted.
ii)
However, even though not captured by the listed examples in the text to
Ogden 7, there is no doubt that the Claimant is disabled in a way which may
threaten her employment status. Her job crucially depends upon her ability to
travel to visit and review hotels and resorts. Her work involves evening
receptions and regular late-night working. In both of these domains her
ability to function is affected by her pain which is unpredictable, intrusive
and tiring. It is also, albeit to a lesser extent with the provision of a
range of prosthetics, limited by the amputation itself.
iii)
I also however take into account my impression of the Claimant as a
person who is capable and committed. The evidence given by Ms Huxley was
impressive. She told me that the Claimant is functioning to a high standard,
including staying late on occasions. There has been no drop off in her work,
although she observed her to be more tired and a little less self-assured.
110.
Taking these factors into account, I find that an uplift to the
reduction factor is appropriate in the Claimant’s particular circumstances. I
am not however persuaded by Mr Audland’s submission that I should increase it above
the mid-point between Table C and Table D (non-disabled and disabled). I find
that the appropriate reduction factor is 0.7. Applying this reduction factor
to the multiplier for the Claimant’s residual earnings capacity produces a
multiplier of 0.7 x 24.89 = 17.42.
111.
From the final figure to be produced by the parties on this loss should
be deducted the travel costs saved by the Claimant receiving a Freedom Pass.
The annual figure is £1,300 per annum.
Accommodation
112.
The final topic which I deal with is the claim for special accommodation
and associated expenses.
113.
The Claimant and her family live in Cardross Street in Brackenbury
Village in West London. The property is in her sole name, although the
Defendant funds half of the mortgage. Mr Carpenter’s flat, also in West
London, is rented out. Brackenbury Village is an attractive area and was
chosen with children in mind, being in the catchment area of a good school. The
house is Victorian, mid-terraced, with three bedrooms and set over three
floors. The ground floor has been converted by the Claimant with a
kitchen/diner and living space, two bedrooms on the first floor (with the
family bathroom on the half landing) and third bedroom and en-suite shower room
on the second floor. To the front of the house is a small garden and at the
back a small enclosed space which includes a patio and small area of artificial
grass. It is common ground between the parties that the house is not suitable
for the Claimant in her injured state and it is reasonable that she move. This
is the extent of the agreement between the parties under this head of loss. I
heard evidence from Mr Tom Wethers (for the Claimant) and Mr Paul Vipond (for
the Defendant) on the various points in issue.
Current value of Cardross Street?
114.
Surprisingly, the parties were unable to agree the current value of the
property. The contending figures are £1.5 million, £1.4 million or £1.45
million. The Claimant told the Court that a local estate agent had recently
valued the property at £1.5 million. Mr Vipond thought that the value of the
property was £1.4 million (and this figure was then adopted by Mr Wethers in
his evidence) but the experts had then agreed the value of the property in
their joint meeting at £1.45 million. Neither expert is an expert in
valuation, let alone in valuation of properties in London. Equally, I take
their point that estate agents will frequently inflate the value of the
property to capture the chance to market the property only to then recommend
accepting a lower offer. With this in mind, I find that the current value of
Cardross Street is £1.45 million.
Would the Claimant have moved anyway?
115.
A good deal of time was spent at trial examining whether the Claimant
would have moved anyway, notwithstanding her injuries. This topic underpinned
Mr Audland’s interest in the number of children which the Claimant is likely to
have; how often and for how long Mr Carpenter’s daughter, Autumn, would have
stayed at the house and the many different ways in which Cardross Street could
be extended or carved up to provide sleeping accommodation and sufficient
storage for its inhabitants if the family had intended remaining living there.
116.
The Claimant stated that she would have remained living in Cardross
Street. Even if she had gone on to have two further children she would have
remained there given the potential to build a small bedroom on top of the
existing bathroom. Now that she intends only to have one further child, that
extension would not be necessary unless she had decided she needed a
study/spare bedroom. She told me that she bought the house because of its
location which is attractive and generally regarded as being desirable; it was
conveniently located for work (including at Heathrow) and it was in the
catchment area for good schools. She told me that, although in her witness
statement she had said that Mr Carpenter’s young adult daughter might come to
live with them for a period of time, this had not happened as she had gone
abroad instead. There were no current plans for Autumn to live with the
couple. She also said that she did not think that her financial situation
would have been sufficient to have allowed a move to anywhere substantially
larger.
117.
I do not accept that the Claimant would have moved house in any event. I
did not get the impression from her that the house had been bought with a view
to re-modelling it and then trading up: the location of the house had been
selected with care, with a view to local schools and it had evidently been
re-furbished to a high standard. I accept Mr Audland’s submission that, if she
had intended to have two further children (in addition to Ossian), it would
have been a tight squeeze; the extension over the bathroom would provide an
extremely small bedroom with space for little more than a single bed and a
cupboard. The alternative proposal of bisecting the master bedroom would also
produce two small rooms when access was taken into account. However, the
trade-off of a house with small bedrooms and limited space for storage of
children’s clutter is a house in a desirable, green and accessible part of
London. The Claimant said that she would have put up with the small bedrooms
(as others in the street have done) and I accept her evidence. In any event,
I have already found that the Claimant is likely to have only one further
child.
118.
I add that I do not accept Mr Audland’s submission that the Claimant has
been disingenuous in her various accounts concerning Autumn living with the
couple. I recognise that at various times in the past, the Claimant has stated
that Autumn was to come to live in Cardross Street but I accept that at the
time when made those various statements were genuine. However, Autumn’s plans
have changed and she has gone to Australia for a year. These things happen.
Even if Autumn had, or would have in the future, spent an extended period of
time living with the Claimant and Mr Carpenter, I do not find that this would
have led to the Claimant moving to a larger house. It may have prompted the
outrigger bedroom being constructed on top of the bathroom or the bisecting of
the master bedroom but not a house move. The real attraction of Cardross
Street is its location and I find the Claimant would have remained living there.
Value of
“Special Accommodation”?
119.
The parties are some distance apart on the value of the house which is
now needed by reason of the Claimant’s injury. The Claimant submits that a
suitable property cannot be purchased for less than £2.5 million; the Defendant
submits that a suitable house can be bought for £2 million.
120.
There is, at least, some common ground as to the necessary attributes of
the new property. The property must replicate the accommodation at Cardross
Street in the number of bedrooms and include an en suite bathroom for the
Claimant. Given however that bungalow accommodation is impossible to find in
West London, both experts have accepted that a lift will need to be installed
and that this will involve sacrificing one room per floor. A four to six
bedroomed property is therefore needed, depending on the number of storeys. It
was also agreed that there must be sufficient storage for the prosthetics and
equipment including a wheelchair and scooter in due course. The location of
the new property is relevant in two respects: first, the house must be
reasonably close to public transport, preferably the tube, to enable the
Claimant to walk there and back and, second, the area must be attractive and
pleasant, similar to Brackenbury Village. The Claimant submits also that the
house must be aesthetically pleasing although this is not necessarily accepted
by the Defendant. There are other points of difference: Mr Wethers has
factored into his size assessment the need for a therapy/activity room for the
Claimant and a guest bedroom on the basis that the Claimant will because of her
disabilities have more frequent visitors to her home, rather than travelling to
see friends. Mr Vipond has not done so.
121.
Both experts have endeavoured to provide the Court with a guide as to
the minimum floor area of the new property. Mr Wethers’ opinion is that a
property of a size no less than 200 square metres is reasonably needed. Mr
Vipond considers that the minimum floor area reasonably required would be 147.5
square metres but that this figure should be increased by 10% to “better those
standards and to allow for plan inefficiencies”. He accepted that some
architects would allow 20% over the minimum if there was evidence that the
Claimant’s wheelchair use would be more frequent, but remain intermittent. He also
said that there would be some architects who would acknowledge the
difficulties in finding a suitable property which exactly matched the floor
area required; in these circumstances it would be reasonable to allow for up to
25% overprovision (in addition to the 10% or 20% allowance to minimum
standards). If the full 25% allowance was made to the base figures derived
from a 10% or 20% uplift, then the range of floor space would increase to
between 203 and 221 square metres.
122.
For the purpose of estimating the cost of a reasonable property, Mr
Wethers and Mr Vipond undertook a review of estate agent particulars:
i)
Mr Wethers located one only property within a suitable radius of
Cardross Street which afforded sufficient accommodation. This was an eight
bedroomed property on the Goldhawk Road with a cellar and scope to convert the
loft. The property is around 285 square metres in size and was, at the time,
on the market at £2.5 million. His assessment of the sum needed to purchase a
suitable property in November 2017 when he provided his substantive report was
based on this property. Although in his supplemental report he referred to
having considered 13 properties which the “Agent” considered possible (and
which averaged at around £2.237 million), Mr Audland fairly makes the point in
his closing submissions that Mr Wethers was unable to say with any confidence
which property particulars he was there referring to. Likewise, in his
supplemental report, he referred back to the “range” of costings given in his
main report: in fact he had not provided a range but given the single figure of
£2.5 million.
ii)
Mr Vipond appears to have undertaken a more exhaustive search. Within a
half mile radius of the Cardross Street, he identified 10 potentially suitable
houses with an average price of £1,824,990. However, he accepted that a number
of the smaller, and less expensive properties, were not suitable following
their inspection by Ms Fox, the property finder engaged by the Claimant. In
the light of this further information he revised his reasonable price range
from £1.8 million to £2 million. He also considered the various properties
which had been identified by Ms Fox as potential contenders. Ms Fox had, on
the instruction of the Claimant, cast her net rather wider than Hammersmith and
included a review of houses in Barnes, Chiswick and Putney. Her second report
appeared to Mr Vipond to identify a number of houses of sufficient size and
with the potential to install a lift in the region of £2 million. Her third
report focussed on Putney and 6 houses were identified with a floor space of
between 269 square metres and 330 square metres. The price range was £2.5 to
£2.7 million. He considered those houses to be overprovision. Mr Vipond also
undertook a review of the houses in the wider catchment area which turned up 12
potentially suitable houses with an asking price in the range of £1.6 million
to £2.2 million. In summary therefore Mr Vipond’s review, including his
assessment of the findings of Ms Fox, confirmed to him that the Claimant would be
able to purchase a suitable property for a sum no more than £2 million.
123.
There is no particularly scientific means by which I can resolve the
difference between the parties on the reasonable cost of a suitable property.
Review of estate agent particulars (whether by the Court, the experts or the
Claimant and her property finder) can never be comprehensive and intrinsically
involves an element of “self-selection”. Such a review, even accompanied by a
preliminary inspection, is capable of weeding out unsuitable properties but it
does not follow that those which remain in the shortlist are suitable. I take
Mr Audland’s point that, simply on the basis of the particulars, there are
properties which would appear to fulfil the criteria and are valued at under
£2million. One such property is the house of 191 square metres on South Side
(in Hammersmith), with off street parking, a garage which could be converted
and, in its current layout, 4 bedrooms. It was on the market at £1.95 million
and sold for £1.8 million. It had been viewed by the Claimant who described it
as having great potential, with lapsed planning permission for a side return
extension. Equally, I accept Mr Arney’s point that there is a larger number
of potentially suitable properties towards the higher end of the bracket of £2
- £2.5 million or indeed over the bracket. Whether any of these properties
though, at the low or high end of the bracket, would be deemed by an architect
to be suitable to meet the Claimant’s needs involves something of a leap of
faith.
124.
My starting point therefore is the reasonable size of the Claimant’s new
house. I find this to be around 190 square metres. I accept that Mr Wethers
arrived at this figure of 200 square metres on the basis of an allowance for a
therapy room which I do not find to be justified on the evidence available to
me. The Claimant is an active gym member. He also made an overly generous
assessment of the space required for the en suite bathroom and allowed for a
guest bedroom without any apparent reasonable justification. On these bases,
it might seem that Mr Wethers’ analysis of floor space is grossly exaggerated.
However, Mr Vipond’s analysis produced a range within which 190 square metres
falls comfortably (from 147 square metres, which is “rock bottom” to 221 square
metres as the absolute maximum).
125.
The various estate agent particulars suggest that a property of around
190 square metres might be found in an acceptable West London location for
around £2 million. However, I also accept Mr Arney’s argument that the search
for a suitable property will be a “difficult brief” and that it may therefore
be necessary to look at houses rather larger than 190 square metres in
different areas and that properties close to public transport links will always
attract a premium and may be snapped up quickly. Taking all these factors into
account, I find that the cost of suitable accommodation is likely to be in the
order of £2.35 million.
126.
Mr Vipond suggested in his report using the price per square metre of
Cardross Street as a cross reference. It was a point taken up with some gusto
by Mr Arney. I recognise the value of such an approach as a cross check as, in
very broad terms, the price per square metre of a house will reflect something
of the quality of the area and proximity to local transport, both of which are
legitimate factors for me to take into account in my assessment of the value of
the new property. Mr Arney informs me that the price per square metre of
Cardross Street is £12,389 (although this was based on a valuation of £1.4
million, rather than the value which I ascribe to Cardross Street of £1.45
million). Using this price and applying it to a property of 190 square metres would
produce a figure of £2.354 million. It does therefore reinforce my view that
£2.35 million is about the right figure for the Claimant’s special
accommodation.
Relocation Costs
127.
The parties have not been able to agree the removal and other costs of
relocation. However, the various sub-heads of loss can now be calculated in
the light of my finding that the Claimant would not have moved but for her
injury and my finding as to the purchase price of the property now needed.
Recovery of Additional Capital Costs of Accommodation
128.
Given the current negative discount rate to be applied for the purpose
of calculating multipliers for future losses, the Claimant would, adopting the Roberts
v Johnstone [1989] Q.B 878 formulation, recover a nil award in respect of
the £900,000 additional capital cost of special accommodation. The Defendant
contends that I am bound by Roberts v Johnstone. Unsurprisingly, Mr
Arney submits that I am not bound by the decision and invites me to adopt a different
approach and formulation, consistent with the principle of full restitution.
129.
The Schedule of Loss proposed four alternative formulae, none of which link
the calculation of the multiplicand to the current discount rate:
i)
the cost of an interest-only mortgage to bridge the difference between
the value of the property to be sold and the purchase price of the special
accommodation. Mr Arney acknowledges that he has not adduced expert evidence
from either an Independent Financial Advisor or mortgage broker setting out
current and projected mortgage interest rates. He argues that no expert evidence
is needed; a basic internet search reveals that the current annual interest
rate on an interest only mortgage is 3.8%. This percentage should be applied
to the sum of £900,000 and multiplied by the full-life multiplier produced by
the application of the current negative discount rate of -0.75%. This would
produce a final figure in the order £1.89 million, more than double the sum
which the notional mortgage is intended to fund.
ii)
In the alternative, Mr Arney proposes that the annual costs of an
interest only mortgage should be paid by the Defendant in the form a Periodical
Payment Order. This has the advantage of limiting the annual costs to the
Claimant’s life span. If she fulfils her predicted life expectation however the
total damages paid over the course of the Claimant’s life will, again, well
exceed the difference in capital cost between the Claimant’s injured and
uninjured accommodation needs.
iii)
The third alternative (and the course which Mr Arney favours and invites
me to follow) is to adopt the Roberts v Johnstone approach but substitute
a different rate of return for the purpose of calculating the multiplicand.
The Schedule “suggests the appropriate rate would be 2% in line with the
interest award on general damages”. No explanation is advanced in the Schedule
or in submissions for using 2% as the notional rate of return. The total
damages to be paid if this formula were to be adopted would again be in excess
of the difference in value between the capital cost of the uninjured and
special accommodation, but only marginally so.
iv)
The fourth alternative which Mr Arney proposes is to award damages
reflecting the cost of renting special accommodation. I need say no more about
this option. Even Mr Arney accepts that this is not a serious contender.
Setting aside that the Claimant does not wish to live in rented accommodation,
the annual sum would be in the order of £48,000 pa producing a total sum well
over the value of the property.
130.
This claim appears to be only the second occasion that this issue has
engaged the Court since the negative interest rate came into force in March
2017. In JR (a protected party by his mother and litigation friend) v
Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB),
William Davis J was also invited by the Claimant to depart from the Roberts
v Johnstone approach. It appears that there were two alternatives urged
upon the Court in that case: either an award of a lump sum reflecting the full difference
in value between the two properties or an award reflecting the difference
subject to the deduction of the award made by way of general damages. There
was discussion of other formulae, including the cost of borrowing the money
necessary to fund the purchase of the special accommodation. William Davis J
expressed no view on the merits of any of the approaches proposed. He
considered himself to be bound by the Roberts v Johnstone. Further, he
considered that he did not have expert evidence of current or projected
mortgage interest rates nor evidence of future trends in net returns from low
risk investments. He granted leave but the appeal was compromised very shortly
before the hearing.
131.
The Personal Injury Bar Association intervened in the appeal in JR
and thought-provoking submissions were filed on behalf of the Association,
drafted by Robert Weir QC and Darryl Allen QC. Mr Arney made those submissions
available to me, together with an article which Mr Weir had written for the
Journal of Personal Injury Litigation (which substantially replicates his
written submissions). Indeed, somewhat unusually, Mr Arney relied upon those
submissions, notwithstanding that the particular course which he urged upon me
(to use the traditional Roberts methodology but substitute an
alternative discount rate of 2%) was not one canvassed by Mr Weir either in his
submissions to the Court of Appeal nor in the JPIL article. Mr Weir’s
submissions focussed upon: a PPO to fund an interest-only mortgage; the payment
of a loan to meet the additional capital cost with a charge over the property; making
rental arrangements; or paying a capital sum to meet mortgage interest costs.
I note in passing that Mr Weir did not endorse the approach urged on the Court
of Appeal by the Claimant in JR of a payment of a lump sum minus the
general damages figure, an approach which he considered to be unprincipled and
arbitrary “in the extreme”.
132.
The first question for me is whether I am bound by the Court of Appeal’s
judgment in Roberts v Johnstone. If so then, whatever the perceived
iniquities of the Roberts v Johnstone formula given the current discount
rate, this is the end of the matter so far as I am concerned. I address this
point below. I can do so relatively succinctly.
133.
As William Davis J set out in JR, the underlying rationale for the
Court’s approach in Roberts v Johnstone was that it was wrong, as a
matter of principle, to award the Claimant the full capital cost of special
accommodation. Such an approach would not lead to full restitution, but would result
in overcompensation as, upon the claimant’s death, his or her estate would
benefit from an asset which had enhanced, rather than diminished, in value. In Roberts
v Johnstone, the effect of a formula based upon the notional cost of a
mortgage necessary to meet the additional sum required to fund the purchase
exceeded the net total difference between the two properties. In the late
1980s mortgage interest rates were running at between 9% and 10% per annum.
Not only therefore would the capital asset remain intact but an immediate cash
surplus, or “even larger windfall” would be produced.
134.
The Court of Appeal found the answer to the conundrum in the notional
cost, or “going rate” of temporarily foregoing the use of the money required to
fund the purchase of special accommodation. Stocker LJ found the “going rate”
to be 2% per annum on the basis of the analysis of Lord Diplock in Wright v
British Railways Board [1983] 2AC 773 of the appropriate interest rate to
be applied for non-economic loss. Expert evidence available to the House in Wright
had demonstrated that the real return from investments which conferred a risk
element were, in times of inflation, “no better than 2%”. Stocker LJ recognised
that the interest rate to be applied for non-economic loss may not be thought
to be appropriate to economic loss, such as the notional cost of mortgage
interest on acquired property; however he reasoned that, where the capital asset
in respect of which the cost is incurred consists of house property, the
inflation and risk element were secured by the rising value of such a property
as bricks and mortar will maintain their value. Lord Lloyd in Wells v Wells,
saw no reason to regard the figure of 2% as sacrosanct and, in the light of the
expert evidence on the average net return on low risk Index-Linked Government
Stock in the conjoined appeals before him increased the figure to 3%, thus
bringing it in line with the discount rate to be applied for the calculation of
multipliers for future loss. The figure has been subsequently “kept up to date”
by the Lord Chancellor when exercising powers under s 1 of the Damages Act 1996
decreasing to 2.5% in 2001 and still further to -0.75% in March 2017.
135.
If Mr Arney had seriously intended that I depart from the Roberts v
Johnstone formulation, then I would have expected to receive, either in
writing or in oral submissions, a reasoned justification for the departure.
However, no fully realised arguments were deployed. Mr Arney tentatively
advanced that I was not bound by Roberts because, on the facts of that
case, the Claimant had already purchased the special accommodation; no practical
funding problems therefore arose and there was a legitimate basis for assessing
the loss by reference to the notional loss of use of the capital. I accept
that the Court of Appeal recognised that the purchase had been financed by a
capital sum paid on account on behalf of the defendants by way of interim
payments. It was acknowledged by the Court that this “reinforced” their
approach. However, it was not suggested in Roberts, (nor has it been
suggested in any of the many cases since 1989), that a different method and/or
a different discount rate should be adopted to calculate the loss in
circumstances where the property has not already been bought by the date of
trial. I do not therefore find this to be a sufficient basis for
distinguishing Roberts.
136.
The real point which Mr Arney was making to me, both in the Schedule and
in his oral submissions, is that the Roberts v Johnstone formula is no
longer fit for purpose in the modern context of a negative discount rate. It
leads to unfairness and a result which is not consistent with the principle of
full restitution. He submits that it could never have been the intention of
the Court of Appeal to have devised a formula which resulted in a nil award. However,
I note that the problems, or anomalies, which the application of the formula can
produce have been present since 1989: the need to fund the property purchase by
scavenging from damages allocated to other losses is intrinsic to the Roberts
formula itself. As Tomlinson LJ observed in Manna v Central University
Hospitals NHS Foundation Trust [2017] EWCA Civ 12, the “robbing
Peter to pay Paul” effect of the formula leads to particularly anomalous (and
problematic) results in a number of different contexts: in catastrophic injury/short
life cases; in cases in which there has been a discount for contributory
negligence or a compromise has been reached; in cases in which damages for care
needs are to be met by a Periodical Payments Order thus drastically reducing
“surplus” income which might be used to fund a property purchase. In these
situations, as the Court of Appeal observed in Manna, the extent of the
shortfall between the sum needed to fund the property and that recovered may be
so great that the property cannot be purchased. The effect of the negative
discount rate is to create a further (albeit larger and more extreme) category
of anomaly.
137.
But, as the Court observed in Manna the formula is the product of
“imperfect principles which have held sway since George v Pinnock.” and I
have no doubt that I am bound by Roberts v Johnstone. It cannot be
sensibly argued otherwise. Each alternative formulation advanced by the
Claimant in this case would produce, if capitalised, a final figure greater
than the loss which the formula is intended to address. Each formulation would
produce the “windfall” which the Court in Roberts considered to amount
to over-compensation. As I have said, so far as I am concerned, that must be the
end of the matter. In the circumstances, I make no award in respect of the
additional costs associated with the purchase of special accommodation. I note,
only in passing, that the basis in principle for Mr Arney’s selection of a 2%
discount rate remains unexplained. Further I, for my part, doubt that, if it
were to be contended that mortgage interest rates were to be the basis for the
loss calculation, it would be sufficient to rely upon the current interest-only
mortgage rate: expert evidence on the trajectory of such rates in the future
would be required. Such evidence is not currently deployed by the Claimant. Further,
although Mr Arney’s alternative formulations included a Periodical Payment
Order in respect of the annual costs of an interest only mortgage, this was not
the course which he advanced as his primary case. In any event, however, as I
have already said, if capitalised even this approach would produce a figure higher
than the loss which the Claimant seeks to recover.
Adaptations
138.
Both Mr Wethers and Mr Vipond acknowledge that any property will need to
be altered and updated on purchase. The costs are not dependent upon the size
or value of the property. On the Claimant’s behalf, the figure of £300,000 is
advanced (reflecting the sum of £261,777 which features in Mr Wethers’ report
together with additional sums for the lift installation and the installation of
a sprinkler system which are harvested from Mr Vipond’s evidence). Mr Vipond
proposes a figure of £218,187. I did not receive detailed submissions either
in writing or orally on each individual item under this head of loss. Nor did I
expect to, given that both of these sets of figures and the costings are, of
course, speculative and only broadly approximate in the absence of a suitable
property having been identified.
139.
Both experts have allowed for some general alterations to provide level
access and replace and widen internal doors. Both allow for refitting of the
kitchen and bathroom to a greater or lesser extent, the installation of the
lift and general decorative work. I note that Mr Wethers has included:
i)
the cost of a carport (£8,084) which is not reasonably needed in the
immediate or medium term;
ii)
the cost of a raised patio (£6,656) which is not explained or justified;
iii)
raised flower beds (£3,540) which have already been costed elsewhere;
iv)
more significant internal structural alterations and consequential
redecoration which I accept are likely to be needed in order to create
sufficient space for the lift installation.
140.
I also accept that it is reasonable for the Claimant to include within
her claim those items which are advocated by Mr Vipond but which did not
feature in Mr Wethers’ report, nor incorporated following the joint expert
meeting. Those items are the domestic sprinkler system (£18,670) and the
higher costs associated with the lift installation (per Mr Vipond £35,500). I
find that those costs are reasonable and I allow them (subject to the
appropriate adjustment to reflect the costings included by Mr Wethers for the smoke
alarm and his alternative lift installation costs).
141.
Taking these matters into account, I allow a global figure of £260,000
in respect of adaptations and alterations.
Additional Running/Furnishing Costs
142.
The additional running and maintenance costs associated with the larger
property also remain in dispute. The competing figures are £12,902 per annum
(Claimant) and £9,015 (Defendant). It is not clear to me how the Claimant
arrives at her pleaded figure: although Mr Arney submits that the figure is
derived from Mr Wethers’ first report at pages 543 to 548 of my bundle, the
combined total of the additional annual costs for heating, electricity, water
charges, housing maintenance, house insurance, council tax and equipment
maintenance is in the order of only £8,500 pa. Although a further claim for
additional curtains is made, this comprises an immediate capital outlay of
£4,000 with annual replacement costs of £486. Given that, on this analysis,
the Claimant’s annual figure is similar to that the Defendant, I allow the claim
at £9,100 pa.
143.
This disposes of all the matters which are set out in the Issues List
provided by the parties. At my direction the parties have drawn up a Schedule
of Loss giving effect to my ruling on the final damages award. I append the
document to this judgment.
Summary
|
|
|
|
General Damages and Past Loss
|
290,000
|
|
|
|
|
Future Loss
|
|
|
1. Aids and Equipment
|
913,299
|
|
2. Care and Case Management
|
668,342
|
|
3. Future Home Maintenance
|
90,000
|
|
4. Loss of Earnings
|
481,573
|
|
5. Loss of Future Pension Contribution
|
50,422
|
|
6. Accommodation
|
968,732
|
|
7. Travel and Transport
|
233,180
|
|
8. Medical and Therapies
|
132,626
|
|
9. Additional Holiday Costs
|
254,877
|
|
10. Miscellaneous Expenses
|
15,000
|
|
Future Loss Total
|
3,808,051
|
|
|
|
|
Total
|
4,098,051
|
