QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) Joshua Folkes (by his litigation friend Patrick Folkes) (2) Patrick Folkes (3) Ferrelyn Folkes (4) Cairo Folkes |
Claimant |
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- and - |
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Generali Assurances |
Defendant |
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Sarah Crowther QC (instructed by DWF LLP) for the Defendant
Hearing dates: 21 & 22 February 2019
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Crown Copyright ©
Mr Justice Nicol :
The role of French law
'This Regulation shall not apply to evidence and procedure without prejudice to Articles 21 and 22.'
'1. The law governing non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.
2. Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.'
'The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any diversion of liability;
(c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred including by inheritance;
(f) persons entitled to compensation for damage sustained personally
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of limitation.'
'Rome II was not intended to deal with the manner in which matters are proved, which remains for national courts applying their own rules of evidence and procedure.'
'Nothing in the Regulation mandates a court, trying a case to which a foreign law applies pursuant to the Regulation, to award the same amount of damages as the foreign court would award.'
The power to order an interim payment under CPR Part 25
'the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant.'
'The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.'
'The jurisdiction to order an interim payment is an exception to the general principle that a defendant has a right not to be held liable to pay until liability has been established by a final judgment'.
'It is undesirable that an application for an interim payment should become a "mini-trial", the procedure is not suitable where the factual issues are complicated or where difficult points of law arise, but an application may properly be entertained in relation to an "irreducible minimum part" of a claim where that part is capable of being established without venturing into disputed areas of fact or law and provided that it is substantial enough to justify the trouble and expense of the application (Schott Kem Ltd v Bentley [1991] 1 QB 61 CA, Chiron Corporation v Murex Diagnostics Ltd (No.13) [1996] FSR 578 (Robert Walker J.), Bovis Lend Lease Ltd. v Braehead Glasgow Ltd (2000) 71 Con. LR. 208 (Dyson J.), Trebor Bassett Holdings Ltd. v ADT Fire and Security Plc [2012] EWHC 3365 (TCC Coulson J.).'
'a court may not make an order for periodical payments unless satisfied that that the continuity of payment under the order is reasonably secure.'
The background to this application for an interim payment
'a. There are serious cognitive impairments. Dr Leng [the Claimant's expert neuropsychologist] found significant decrements with memory, language, attention and delayed memory... He has memory problems and problems processing information (for example, he sometimes cannot follow the story of a film.) Joshua has passed all tests of effort.
b. There was frontal lobe damage and there are executive deficits ... Joshua's behaviour tends to be impulsive. He sometimes drinks alcohol to excess (it does not take much to make him drunk) and puts himself in dangerous situations. He has difficulty initiating, with planning and problem solving...
c. There are problems with fatigue, reduced insight, disorganisation and poor planning, neglecting to eat, and vulnerability in his interactions with others (over-trusting, sharing personal information, trying to buy friendships, etc) Even a modest amount of alcohol has a marked effect on him and greatly increases his vulnerability.
d. He has marked ataxia and a wide gait. His balance is poor and he is often at risk of falling.
e. His speech is seriously affected. He has difficulties with expressive language and comprehension as well as moderately severe dysarthria (poor articulation) so that speech intelligibility without context has been assessed at 36% and with context at 86%. He will have real difficulty being understood against background noise.'
'With such severe injury leading to neurocognitive deficiency and weakness down the left side with ataxia it is apparent that Mr Folkes requires on-going and long-term neurorehabilitation.'
He recommended a trial of independent living with 24 hour care support.
'18. It would seem that the beginning of the independent living trial for Mr Folkes has been relatively successful with regard to the opinion of Dr Parrett [the Claimant's lead treating neuropsychologist] Dr Parrett as a rehabilitation specialist in the field of clinical psychology didn't perceive that there was anything inappropriate with the trial of independent living with a full support package. It would seem obvious from the neurological perspective that this trial of independent living needs to continue with a full care support package and buddy assistance and the input of the case manager albeit an individual who will be new to the needs of Mr. Folkes.
19. I cannot think of any circumstances whereby independent living should be withdrawn. My own experience of independent living trials when they are ended prematurely is that this can have a seriously negative impact on the brain injured or suffering individual, such that they may end to a significant downward spiral. It would seem reasonable for a neurological review of Mr Folkes to take place sometime between the spring and autumn of 2019. At that time, it will be expected that Dr Parrett, Ms Ongley-Deller [the Claimant's case manager], the support team and the other neuroscientists instructed will be able to guide as to the success of the independent living trial and where this should go into the future.'
'It is envisaged that now with an independent living trial support workers will be able to deliver interventions more intensively. Dr Parrett has identified a number of potential risks, namely physical injury in the community, being vulnerable to exploitation, depression and drug relapse and make a number of recommendations, including advising against too rapid a reduction in support which could well lead to deterioration and undermine the approach.
Without the recommended intervention his progress and the final outcome are in my view likely to be sub-optimal. Indeed in my clinical experience in similar cases there will be significant risk of psychological deterioration without sufficient rehabilitation and subsequent support. I would therefore support an ongoing rehabilitation programme.'
'Given the success of the support worker input in the last 3 months, it would seem premature and risky to start rolling it back until such a time as Josh has demonstrated some consistent ability to retain and implement strategies independently. More importantly, to stop placing himself in potentially dangerous situations.
Rolling back support, particularly at night will undoubtedly lead to more impulsive nights out and late nights. Whilst risky in themselves, they will also impact on his sleep and fatigue, which in turn will affect his mood and ability to complete the work required for his music production course on which so much of his self-esteem is currently resting.
I continue to recommend intensive independent living trial until the new team is fully trained and confident in following the guidance of the MDT [multi-disciplinary team]. At the point it would seem sensible to trial reductions in support.'
'I consider this is essential during this immediate period. I note that in his report Dr Jacobsen has suggested that there is no need for night time support. I strongly disagree. Indeed, in my opinion, Joshua is at his most vulnerable during the late evening and overnight periods, when he would otherwise be out in the community unsupported and inviting strangers back to his home. He is at greatest risk during these times due to his poor insight and poor self-monitoring. He also needs support early each morning to make sure he is up ready for the day, and undertakes his morning strategies effectively. His poor road safety currently necessitates support when he is out and about using public transport. He requires support to ensure he feeds himself across the day. Trying to pare away hours of support at this stage will only serve to reduce the effectiveness of the rehabilitation programme which is aiming to provide him with timely support and avoid him making repeated errors and inadvertently learning from them.'
The nature of the present application
The Defendant's position
'is a medical term corresponding to the stabilization of the victim's state of health i.e. when the condition of the claimant cannot get neither worse nor better and the state of health is to be considered as definitive and permanent.'
'There is no evidence hitherto of vulnerability or difficulty responding to an emergency at night, although I appreciate that he still lives within the family home with his parents and brother present. The proposed high level of support does not appear to be justified by a risk analysis. The recommendation of 24/7 support seems to be founded on a high level of risk avoidance in the apparent absence of estimation of risk and despite the good progress reports from Hobbs Rehabilitation.'
i) The flat which the 1st Claimant has "is of superior quality and has generous open plan living". Ms Fraser considered this an unusual choice for a young man of Mr Folkes' age and not in keeping with that which would normally be occupied particularly had he been at University.ii) The 1st Claimant would be unlikely to manage a flat of this size and therefore it is not conducive of a move towards independent living.
iii) The school of music which Joshua attends is about 50 minutes away by public transport.
iv) To get to his parents' home, Joshua had to travel about 20 minutes on public transport.
v) While Ms Fraser agreed with Dr Jacobsen that 24 hour support care was not necessary, it would not seem unreasonable for the first 3 – 4 months
vi) More could have been done to prepare Joshua for a trial of independent living.
vii) Problems with Cairo (the 4th Claimant and Joshua 's brother) may have been part of the reason why Joshua moved out of his family home.
viii) There were no reports of overnight waking or care interventions and there could have been a managed reduction of the number of nights where a support worker stayed overnight after about 4 months.
ix) Ongoing support is required but should be assessed on a lower level than at present
x) The number of hours spent by the case manager has been excessive.
i) 24 hour support worker attendance is not necessary.ii) It is the presence of an overnight support worker which makes a 2 bedroom property necessary. Without that, a 1 bedroom property would be sufficient.
iii) In any case, the flat (in Fulham) is of unnecessarily high quality and is not particularly convenient either for his parents' home (in Wandsworth) or for his college (in East London).
iv) For these reasons, there are reasonable grounds for concluding that the costs of the support worker and accommodation could not be recovered as a matter of French law.
v) Credit would need to be given for the accommodation costs which have been saved.
vi) The Defendant does not accept that Joshua would have worked while a student and does not therefore accept that lost earnings should be included at this stage
vii) The Deputyship costs are excessive.
Discussion
'A "reasonable proportion" may well be a high proportion provided the assessment has been a conservative one. The objective is not to keep the Claimant out of his money but to avoid the risk of over-payment.'
The figures
'However, I must stress that the Claimant must bring evidence to support his claim, such as sport licenses, membership of association or witness evidence that he was actually practising on a regular basis those activities. Otherwise this loss is already compensated under the permanent functional disability head of loss. I must also point out that under French law, no compensation can be awarded solely on the basis of the Claimant's statement.'
I recognise that there is in this paragraph a blurring of the distinction between recoverable head of loss (to be determined by French law) and the mode of proof (a matter of English law). Nonetheless, there is substance in M. Ricard's warning that this separate head of loss is dependent on proof of loss over and above what is already compensated for by permanent functional disability (and, to some extent, temporary functional disability).
While, as M. Ricard also says, Joshua enjoyed kite surfing, skate boarding and skiing, I have not seen the evidence that would justify a separate award under this head over and above what the permanent functional disability award is intended to cover. Consequently, I agree with the Defendant that no separate amount should, at this stage be allowed for this possible head of damage.
Conclusion