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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		Sitting at Vernon Street, Liverpool and at the Civil Just Centre Manchester
		12 November 2021

Before His Honour Judge Bird:

Introduction


1. This judgment deals with the assessment of damages payable to Celine Martin by way of compensation for loss and damage arising from the Defendant's negligence in 2010. Liability was established followed trial before Mrs Justice Andrews (as she then was) in June 2018 (the decision is reported at [2018] EWHC 1824). Before me, the claimant was represented by Miss Ruck of counsel and the Defendant by Mr Feeny of counsel. Miss Ruck did not appear at the liability trial, Mr Feeny did. I am grateful to both for the sensible and collaborative manner in which they conducted the case.
   

Before the defendant's negligence


2. Miss Martin is 47 years old. She was born and grew up in Cork in Ireland. She has a large family. The evidence suggests that she attended university in Dublin and played Gaelic Football for the national team. She travelled extensively in America and South Africa. After graduating she ran a hostel for a number of years and moved to Manchester in 2001. In 2004 she worked for a short period as a hotel receptionist.
   
3. She has an extensive psychiatric history which began before the defendant's negligence. She lives with Emotionally Unstable Personality Disorder ("EUPD") and paranoid schizophrenia and has a history of substance abuse. She has in the past attempted suicide and has been detained at mental health facilities for long periods. The schizophrenia remains under control for as long as Miss Martin takes appropriate medication. EUPD leads to a propensity to become involved in intense and unstable relationships with emotional crises, excessive efforts to avoid abandonment and suicidal threats.
   
4. From 2002 Miss Martin was regularly admitted to hospital for mental health assessments under section 2 of the Mental Health Act 1983 ("the Act"). Treatment orders were made under section 3 of the Act in 2003, 2004, 2005 and 2006. There were further section 2 assessments in 2007 and 2008 and a further treatment order in 2009.
   
5. In June 2009 an order was made under section 38 of the Act detaining Miss Martin following conviction for arson pending sentence. In February 2010 a section 37 hospital order was made with section 41 conditions attached. That order has now been discharged. Miss Martin suffered the injuries described below (as a result of the defendant's negligence) whilst detained under section 37.
   

Since the defendant's negligence (a summary)


6. As a result of the Defendant's negligence in 2010 Miss Martin is dependent on others for all aspects of her daily life. She uses an electric wheelchair to get around and relies on carers. She requires hoisting to move from her chair. Her left leg is shortened, and she has footdrop. She has restricted movement in all limbs and has very poor sitting balance. Miss Martin also suffered a brain injury which has resulted in severe neurological impairment. I deal with the brain injury below under the separate heading of capacity.
   

Miss Martin's mental and general health since 2010 (a summary)


7. In January 2013 the claimant was discharged from the section 37 hospital order by direction of the Mental Health Tribunal. She remained subject to section 41 conditions. If the conditions were breached Miss Martin would be liable to a recall. She was permitted to live at Agricola House a unit comprising specialist accommodation for adults with acquired brain injuries near Bury. She moved in in April 2013.
   
8. In May 2016 Miss Martin left Agricola House and went to live at Wellington Road in Whalley Range. She remained subject to section 41 conditions. On 27 November 2018, because her mental health had deteriorated, she was recalled to hospital. The facilities and support available to her in hospital did not allow her to shower, so that she had to return to her flat on a regular basis to wash. On 25 March 2020, Miss Martin was discharged back to her flat at Wellington Road. Conditions remained in place. They are set out in Dr Ramzan's report of 24 June 2020. Miss Martin was to:
   

a. Reside at Flat 28b, Wellington Road, Whalley Range, Manchester, M16 8EX.

b. Allow access to the accommodation, as reasonably required by the Responsible Clinician and Social Supervisor.

c. Comply with all elements of her care plan, agreed as necessary by her inpatient and community mental health teams prior to her discharge.

d. Comply with prescribed medication for her mental disorder, as directed by the Responsible Clinician and Social Supervisor.

e. Engage with and meet the clinical team, as directed by the Responsible Clinician and Social Supervisor.

f. Abstain from illicit drugs.

g. Submit to random urine and alcohol testing as directed by the Responsible Clinician and Social Supervisor.

h. Not smoke any cigarette or ignitable substance within her flat (she can smoke in the designated area in her outside courtyard)


9. There was a brief further voluntary admission to hospital in August 2020 after a further deterioration in her mental health.
   
10. Since the trial of this action and before a draft judgment was circulated the section 37 and Section 41 orders were discharged. Miss Martin is therefore no longer subject to conditions and is no longer at risk of recall to hospital.
    

The care the claimant has received since 2010


11. Miss Martin enjoyed her time at Agricola House but had no mental health support there. As Miss Laverty, the jointly instructed neurological physiotherapy expert notes, she received physiotherapy at Agricola house which concentrated on her trunk alignment and stability in sitting. She received some community physiotherapy when she first moved to Wellington Road. The absence of mental health support motivated her move to the Wellington Road which is managed by "Creative Support" a mental health charity. Initially Creative Support provided night care to her if she needed it on a "call for help" basis, but she had no entitlement to 24-hour care. Creative Support also provided a support worker to drive (but see below at paragraph 30 – Creative support were unable to provide a driver as often as she would like) and take her shopping as well as provide her meals. Here daytime physical care needs were met by an independent care agency "iCare Solutions".
    
12. When first at Wellington Road (before her recall to hospital in 2018) Miss Martin had 4 care visits per day at 9am, 1pm, 5pm and 8pm (these are described in Miss Laverty's 2017 report).
    
13. She told me that when she was recalled to hospital her care package was stopped. When Miss Martin moved back to Wellington Road in March 2020 Creative Support ceased to provide any night care. She had applied for funding for night care but that was refused on 25 February 2020. Instead, the claimant was offered "assistive technology" in case she needed night-time help with a monitoring and response line in place with a seizure alarm.
14. Her present package of care providing mental health support (through Creative Support) and physical care (through iCare solutions) represents "after-care services" funded under the statutory duty set out at section 117 of the Act.
15. Miss Martin has had a care co-ordinator since March 2020. In fact, she has had 3: Helen Davies who did the job for a matter of months and left at short notice, Natalie Vassiliou who also left at short notice and Michelle Ahmed. The job of a care co-ordinator is to co-ordinate mental health support. She has no neurological case manager whose job would be to co-ordinate her physical needs arising out of her neurological condition.
16. I heard very little evidence about the mental health support provided to Miss Martin. She is content with that support and wishes for it to continue as section 117 aftercare. She told me that she has a positive relationship with Michelle Ahmed and feels that her mental health has been quite good over the past few months. The fact that she has been discharged from the section 37 and section 41 orders supports this view.
17. Detail of the physical care provided to accommodate Miss Martin's neurological deficit and physical difficulties caused by the Defendant's negligence is set out in an updated care plan dated 18 July 2020. The plan caters for personal care, domestic support, companion duties, laundry and meal preparation. There is no physiotherapy. Five daily visits over 7 days per week are planned out. On each day there will be 4 or 5 visits covering 4 hours. The package is to all intents and purposes inflexible. The time carers can give Miss Martin is limited to the programmed visits (now at approximately, 7.30am, 1.30pm, 4.30pm and 9pm each for 30 minutes and 9.30am for 2 hours). These visits are an improvement on the 2017 regime described above when the last visit was at 8pm.
18. There is still no night cover. In February 2021 Miss Martin reviewed the totality of her care plan with Miss Ahmed. The absence of overnight care was discussed. A note of the review records that Miss Martin has said that she did not need a carer to stay with her overnight and was in effect content with the alternative technological provision.
19. On 24 February this year, Miss Martin was granted funding for a Personal Assistant. She told me that her PA, Michelle Culliney, who worked with her at Agricola House, stays at the flat one night every week and buys food for her when family visit from Cork. She told me she gets on well with Michelle.

The Evidence


20. The complexities of Miss Martin's health issues will have a long-lasting impact.
    
21. Mr Ford and Ms O'Farrell, the care experts, agree that Miss Martin's physical health care needs are likely to increase as she ages. They also agree that her mental health care needs will fluctuate.
    
22. Mr Worlock, the claimant's orthopaedic expert in his report of 6 August 2014 "suspected" that Miss Martin would need to move to a nursing home at some point in her 60s or 70s as a result of mental health and physical issues.
    
23. Dr Ramzan and Dr Adshead agreed that Miss Martin is likely to be re-admitted as in-patient for mental health care in the future. Before she was discharged, they agreed that if she was recalled under section 37 that any time in hospital would have been measured in months rather than weeks. They also agreed that if Miss Martin was in receipt of a holistic needs-based care package including suitable accommodation and equipment it would reduce or mitigate the need for in-patient psychiatric treatment. This is because an appropriate package of care would reduce or mitigate her stress levels which are known to have been a destabilizing factor and are associated with the need for admission. But, if there was an admission its duration would be unaffected by the care package provided.
    
24. Dr Crawford and Dr Goulding agreed that "muscle strength is unlikely [to be regained] before the age of 70, when there will be gradual worsening because of the effects of ageing. We agree that this is unlikely to necessitate additional care because the Claimant is already in receipt of care for the majority of her physical needs."
    
25. Dr Basu is the jointly instructed expert in rehabilitation, he expresses the view that it is likely that Miss Martin's endurance and independence will reduce from around 60 years of age and onwards. It might be necessary to transfer her care from home-based care to nursing home/care home-based care at around the age of early 60s.
    
26. Miss Martin's wish to live as independent a life as possible was clear. She showed clear insight into her EUPD and accepted that over-dependence on others was detrimental to her mental health. Both psychiatric experts (Dr Ramzan and Dr Adshead) emphasised the importance of autonomy and independent living for Miss Martin's mental health. The care experts (Mr Ford and Miss O'Farrell) agreed that Miss Martin needs to be able to do more for herself. Mr Ford was clear that having 2 carers (at least during the day) would increase her autonomy rather than make her reliant. Miss O'Farrell felt that once in suitable accommodation Miss Martin's present level of care would be appropriate.
    
27. It was suggested to Miss Martin that when, in February 2021 (see paragraph 18 above), she told the care co-ordinator that she was content to accept assistive technology instead of night care, the reason was concern over becoming over-dependent. Miss Martin was adamant that that was not the case and said she was prepared to accept assistive technology in place of night care because funding for it had been refused and she had little choice in the matter.
    
28. The principal reason put forward for night care is to support Miss Martin's night time toileting. At present she wears pads in bed, but she told me she would prefer not to and that the pads made her sore. The problem of toileting is exacerbated because the present care regime (although better than the 2017 care regime which required her to go to bed at 8pm) means she needs to go to bed earlier than she would like (she told me she was "put to bed" early). She told me that she wakes at about 4 am needing a bedpan and might wake once or twice during the night.
    
29. Mr Ford's view was that it was "wholly unacceptable" to leave Miss Martin in soiled incontinence pads through the night. When that happens, he told me that "the care regime forces her to be electively incontinent through a lack of provision". Miss O'Farrell agreed that Miss Martin should be able to toilet at will, but felt that having 2 carers 24 hours per day was not a reasonable way of bringing that about.
    
30. Miss Martin talked of a desire to visit museums and go to the Trafford Centre and to be able to do so at times of her choosing just as she had before her injuries. She told me that it was sometimes difficult (her chair is too wide for some cabs) and embarrassing (a taxi driver had told her she would be too heavy for his ramp) to use taxis but accepted that she could use the local tram network without too much difficulty. She told me that she had had a Motability vehicle, but that Creative Support were unable to provide a driver as often as she would like. She returned the car because it was taking up her Motability allowance. She told me that she would have no issue using Motability in the future.
    
31. Miss Martin was clear in her view that her carers did a good job, at least within the confines of the physical care package available to her. I was able to see at first hand (and cannot ignore) the extent to which she is required to fit her life around the care regime; a taxi had been booked at 3pm to take her from Liverpool (where the trial was heard) to Wellington Road. The time had been fixed so that she would arrive home in time for the carers' 4.30pm visit. At a little before 3pm, and even though her evidence had not finished, she told me that she would need to leave because the cab was waiting. I formed the clear view that her desire to leave was not to avoid the taxi driver having to wait, rather it was because if she was not home for 4.30pm she would not have the opportunity to be toileted or have her pads changed or to wash and freshen up until 9pm or even the next morning (because the 9pm visit was for only 30 minutes).
    
32. Claire Laverty prepared 2 reports: one in October 2017 and the other in September 2020. It is plain that Miss Martin's physical condition had deteriorated between the visits. Miss Laverty recommends the following programme of physiotherapy but defers to accommodation experts as to the "potential for a therapy room". She recommends that a physiotherapy plinth (or table) be purchased but notes that "it would be difficult to have this within the current home environment due to limited space":
    

a. Year 1: 78 physiotherapy sessions with a further 4 sessions working with the occupational therapist and a further 6 sessions for cardiovascular support training for carers and 12 hydrotherapy sessions


b. Year 2: 24 physiotherapy sessions with a further 4 sessions working with the occupational therapist and a further 6 sessions for cardiovascular support training for carers


c. From Year 3 onwards: 12 physiotherapy sessions with a further 6 sessions for cardiovascular support training for carers


The proper approach to damages


33. There was no real dispute between the parties as to the approach I should adopt. The aim of an award in damages is to put the claimant in the position she would have been in had the Defendant's negligence not injured her. The process is not a scientific or precise one. The injured person is entitled to "fair and reasonable, but not excessive, compensation" (see Swift v Carpenter [2020 EWCA Civ 1295 at paragraph 206). The court should adopt a pragmatic approach and here, make a fair and reasonable award while at the same time taking reasonable steps to avoid over-compensation.
    

Agreed damages and other agreements


34. The parties have agreed the following in the total sum of £554,190 as follows:
    

a. PSLA including interest: £311,190

b. Past losses: £30,000

c. Life multiplier: 19.46

d. Agreed future losses:


Aids & Equipment	£60,000
Orthotics	£10,000
Occupational therapy	£15,000
Chiropody	£3,000
Holidays	£75,000
Physiotherapy	£50,000

The remaining issues


35. The remainder of this judgment deals with the following issues:
    

a. Physical Care (at paragraphs 36 to 64): The extent of Miss Martin's future physical care needs and case management needs is in issue as is the extent to which damages in respect of such needs are recoverable. I deal below with the following issues under this heading: the principle of recoverability where physical care is provided under non-means tested state funding, Miss Martin's hopes and intentions in respect of the provision of future care. I then deal with what care provision should be made and the need (or not) for a case manager.


b. Accommodation (at paragraphs 65 to 72): It is accepted that Miss Martin's damages should include a sum in respect of accommodation. An issue remains as to the size of accommodation, whether a separate therapy room needs to be built on and whether the property should have a garage or if a carport would suffice.


c. Transport (at paragraphs 73 to 80): How future travel requirements are to be dealt with


d. Loss of Earnings (at paragraphs 81 to 83): Whether Miss Martin has a loss of earnings claim


e. PPO (at paragraph 84)


f. Capacity (at paragraphs 85 to 113): If Miss Martin has capacity


g. Amendment (at paragraphs 114 to 130): Should I allow her claim to be amended to include a claim for the cost of a PI Trust?


Physical Care


The Principle


36. It is clear, and not disputed, that Miss Martin requires support and care for the rest of her life. Her needs fall into 2 broad categories: first, those that arise as a result of her mental health needs and secondly, those that arise as result of her physical needs. The first category represents a longstanding need which does not arise as a result of the defendant's negligence. The second category does arise as a result of the defendant's negligence. Because I am concerned only with losses that have arisen as a result of the defendant's negligence, I must approach damages by reference to the second category not the first. In effect, the first category must be hived off.
    
37. Miss Martin's present care and support package (which I have described above) is funded through section 117 and covers both categories of care. Because I am told that Miss Martin will continue to receive state funded mental health support the hiving off of physical care is, at least in the abstract, not a difficult exercise.
    
38. An issue does however arise. In short, Miss Martin will continue to have a right to access section 117 funded physical care support whatever damages award I make. The funding is not means tested and her need is ongoing and cannot be displaced (see Tinsley v Manchester City Council & South Manchester CCG and others [2017] EWCA Civ 1704). If Miss Martin were to continue to rely on section 117 funding to meet her physical care needs, she would not be entitled to recover the cost of that care from the defendant (see Crofton v NHS Litigation Authority [2007] EWCA Civ 71). To award damages to allow Miss Martin to pay for care she would receive from the state at no cost would be to overcompensate her. In Tinsley Longmore LJ (with whom other members of the Court agreed) said at paragraph 26:
    

"It is, of course, the case that courts will seek to avoid double recovery by a claimant at the time they assess damages against a negligent tortfeasor. If therefore it is clear at trial that a claimant will seek to rely on a local authority's provision of after-care services, he will not be able to recover the cost of providing such after-care services from the tortfeasor. Crofton's case [2007] 1 WLR 923 is itself authority for that proposition."


39. The principal of whether future care costs should be recovered at all needs to be resolved. The defendant submits that there is here a "very significant prospect "of double recovery.
    
40. The defendant submits that it is clear that Miss Martin will continue to receive section 117 funded care to cover her physical needs primarily because Miss Martin appears satisfied with her care and it would not be appropriate to separate out physical care and make private provision for it.
    

Is it clear that Miss Martin will continue to take physical care funded through section 117?


41. This is a question of fact. To resolve it, I need to consider the following points:
    

a. Would a split care package be detrimental to Miss Martin?

b. Is the care provided under section 117 adequate?

c. What does Miss Martin say about this?


Would a split care package be detrimental?


42. The defendant argued that the section 41 conditions to which Miss Martin was subject (see paragraph 8 above) required her to maintain the totality of the section 117 care package and that I should therefore proceed on the basis that Miss Martin would (necessarily) continue to rely on section 117 funding so that the cost of such care would not be recoverable. As the section 41 conditions no longer apply, I can deal with this point very briefly. Dr Ramzan told me that the section 41 conditions allowed flexibility. The content of the care plan was a matter for the clinical team not for the MoJ. The conditions are designed to ensure that the appropriate care plan (whatever it may be) is adhered to, not to make it difficult to alter a care plan. Dr Ramzan told me that the MoJ would have no interest in the identity of the care provider. Had it been necessary to receive the issue I would have accepted this evidence and found the section 41 conditions were no bar to a new (and possibly split) care package.
    
43. Dr Ramzan, Miss Martin's forensic psychiatry expert, told me that as long as there was good communication and a degree of overlap between physical and mental health care that "it would not make any difference" if the provision of physical and mental health care was split.
    
44. Dr Adshead, the Defendant's expert in forensic psychiatry agreed that there was no inherent difficulty in mental health care and physical care being provided by 2 providers. She pointed out that that is what happens now and agreed with Dr Ramzan that the key to successfully achieving appropriate care would be oversight to ensure "coherent holistic care".
    
45. I can see no reason why the separation out of physical care would cause any issue provided there is appropriate oversight and communication. I accept the experts' views on this point.
    
46. The defendant also argued that the physical care regime presently in place was adequate for Miss Martin's needs so that there was basis on which damages for physical care might be awarded.
    

Is the care provided under section 117 adequate?


47. Having heard the evidence I am satisfied that Miss Martin's present care regime is not adequate. The care regime is insufficient to put her in the position she would have been in had she not been injured as a result of the defendant's negligence.
    
48. I have outlined the present care package at paragraphs 11 to 19 above and set out the salient aspects of Miss Martin's evidence. The absence of any real flexibility in the timing of care visits and the absence of overnight in-person support are prime examples of inadequacy. I accept Miss Martin's evidence that she expressed satisfaction with the night care routine only because that was all that was available to her. I agree with Mr Ford that it is "wholly unacceptable" to leave Miss Martin in soiled incontinence pads over-night.
    
49. The defendant argues that the physical care package, even if it does not meet all of Miss Martin's needs is adequate and appropriate because it achieves the right balance between providing support and supporting autonomy on the one hand and avoiding dependence and reliance on the other. Too much care would make Miss Martin reliant and dependent. That would be harmful to her mental health.
    
50. I reject that argument. I accept Miss Ruck's submission that I would need far better evidence if I was to conclude that a fuller care package would be detrimental to Miss Martin.
    

Miss Martin's views


51. Miss Martin spoke of a desire to regain her dignity and independence. Whilst she expressed no concern about the professionalism of her carers it is clear that she regards the physical care package itself as wholly inadequate.
    
52. Hospital records from 2019 show a clear pattern of Miss Martin expressing a desire to have paid carers support her at home. A report written by Dr Caroline Hoult, Miss Martin's treating consultant forensic psychiatrist in July 2019 when Miss Martin was in hospital refers to Miss Martin talking about a desire to buy a bungalow and "have carers come in and look after her" and a belief that "compensation she is due to receive from the NHS would be able to pay for this". A similar point was made in a report compiled at the hospital on 16 April 2019 by another treating clinician Dr Hyde "longer term plans include buying a bungalow when she receives her compensation and having a homecare package set up there".
    
53. I understood her evidence to be that she got on well with her carers, trusted them and treated them like family. This approach seems to be a continuation of Miss Martin's general trust and confidence in most people she meets. But getting on well with carers is very different to accepting the adequacy of the care package. On the evidence I do not accept the defendant's submission that Miss Martin is content with the care package she receives. Far from it.
    
54. In any event, Miss Martin's happiness with the care package would not mean (if I accepted it) that I should find that she would continue to receive it.
    

Conclusion on future care in principle


55. On balance, taking all of these points into account, I am satisfied that, in principle, an award for future care should be made. I am not satisfied that Miss Martin will accept the section 117 physical care provision as sufficient to meet her care needs. It is plain from her evidence that she wants more support than the package provides her with.
    
56. I am satisfied that any possibility that Miss Martin might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.
    

What care provision should be made?


57. In my view Miss Martin should be compensated to the extent needed for her to have 2 day-time carers/support workers, a personal assistant and one night-time sleeping carer. I reach that conclusion for these reasons. Two daytime carers/support workers are needed to give Miss Martin flexibility to leave her home when she wishes and to toilet, shower and be supported as and when needed.
    
58. I accept Mr Ford's opinion that the day support provision should be for 14 hours each day and for 7 days each week (196 hours per week) at an hourly rate of £12. I also accept that one of the support workers should be paid at an enhanced rate (an additional £5 per hour for 36 hours) to act as a team leader. I do not accept Ms O'Farrell's opinion that the present care regime is adequate or would be in a suitable property. I accept Mr Ford's unchallenged evidence that the ancillary costs of employing carers (to cover for example, national insurance, tax and holiday pay) must be added. Those costs amount to 36% of the base costs.
    
59. I find that Miss Martin's night time needs will be met by a sleep-in carer because at present she requires assistance (as she told me) once or twice in the night. I accept Ms O'Farrell's evidence on this.
    
60. I have set out the expert view on Miss Martin's future care needs above. In short, her physical health is likely to decline over time and there is a prospect that she will require nursing home care in later life. The likelihood of such care falls short of a probability and if the risk is realised it is likely (given the agreed lifetime multiplier of less than 20) to be relatively short-lived. A good care package will help to protect Miss Martin from stress and in turn that will help to keep her mental health issues in check.
    
61. There is a risk that an award of damages on a lifetime multiplier basis in the amounts I have set out might over-compensate Miss Martin if she is hospitalised for long periods, or her night time care needs increase, or because (contrary to the view I have already expressed, and although the possibility is in my view small) at some point in the future she seeks section 117 assistance. Equally there is a prospect that an award might under-compensate if her physical needs increase over time, but she can be cared for at home. Such an award in my judgment takes account of the small potential that she will be required to pay residential care in later life.
    
62. I have come to the conclusion that an award of damages for care and support as I have set out over the entirety of the claimant's expected lifetime is appropriate. Such an award is in my judgment the best way to address the risk of under-compensation or over-compensation.
    

Case manager


63. The expert evidence was clear that communication between those providing physical care and mental health care is key. It would in effect turn 2 separate care packages into the sought-after holistic package.
    
64. In my judgment the appointment of a case manager (to oversee physical neurological care) is key to the success of the overall package. In the absence of such a manager communication between the 2 sides of the package would be difficult and probably impossible. I am satisfied that the cost of a case manager is recoverable as part of the damages to be paid by the defendant. I note the costs advanced by Mr Ford are relatively modest. I approve those amounts at £8,886 per annum with a one-off set-up cost of £15,188.62.
    

Accommodation


65. The accommodation experts were Ms Heath for Miss Martin and Mr Brack for the Defendant (the care experts have also commented on accommodation issues). They agreed that Miss Martin's present accommodation is not suitable and there was no issue that a new home should be acquired. The amount of damages to be awarded will be calculated in accordance with the formula set by the Court of Appeal in Swift v Carpenter. Three issues arise:
    

a) The size of the property (it is agreed that there are 2 options: a smaller property with a notional value of £283,333 or a larger property with a notional value of £474,950);

b) Whether a dedicated room is required to house the physiotherapy plinth required for at-home physiotherapy sessions as set out by Miss Laverty and rehearsed above;

c) Should the property have the benefit of a car port or garage.


66. The larger property cost is the value of a notional 4-bedroom property with an approximate internal area of 225 sq.m (according to Mr Feeny's closing submissions). The smaller property is based on a 3-bedroom property with an approximate internal area of 115 sq.m. I remind myself that the properties are simply examples. My task is not to identify a suitable property or approve a suitable scheme of adaptations but to arrive at an award in damages, by reference to the examples, which is sufficient to allow Miss Martin (as far as possible) to put herself in the position she would have been in had she not been injured.
    
67. Miss Laverty defers to the accommodation experts on the question of need for a therapy room in new accommodation. The physiotherapy plinth she recommends measures 1020mm x 1890mm and would need a doorway of 900 mm to enable it to be moved from one room to another. It will be used intensively for the first year (approximately 88 sessions), less so in the second year (approximately 34 sessions) and thereafter for around 18 sessions per year. These sessions recommended by Miss Laverty are the minimum. Nonetheless they indicate that after year 3 Miss Martin's reasonable physiotherapy needs can be met by relatively infrequent use of the plinth. I agree with Mr Brack that it would not be reasonable to provide a dedicated therapy room to deal with the treatment Miss Martin reasonably needs.
    
68. Ms Heath accepted during cross examination that it would be feasible to convert a 3-bedroom property into suitable accommodation with a guest room and a room for a carer to sleep overnight and to allow some physiotherapy in the property. Mr Brack suggested that a 3-bedroom property would be adequate.
    
69. As far as a car port or garage is concerned, Mr Brack suggested that a car port covering 24 sq.m would represent perfectly reasonable provision. It would allow Miss Martin access to a vehicle from the house under cover and so without exposure to rain. Ms Heath agreed that exposure to the elements was a key concern and told me that a garage would, in effect, provide extra storage space. She and Mr Ford expressed the view that a garage would be preferable.
    
70. In my view, a car port would represent perfectly reasonable provision. In reaching that conclusion I bear in mind that if Ms Martin is taken to museums (as she said she would like) or to shopping centres, she would almost certainly have no choice but to be exposed to the elements when she left the vehicle. In my view a suitable car port would provide better all-round access to a vehicle for Miss Martin.
    
71. A range has been provided for the cost of a car port from £8,868 to £11,800. I propose to allow the larger figure proposed by Ms Heath in the joint report of 7 December 2020. That sum allows for fees and VAT for a large 24 sq.m car port. The experts have not explained where the difference between the sums comes from. It seems to me that, looking at the matter in the round, it is appropriate to err on the side of caution and allow the (slightly) higher amount.
    
72. On figures helpfully agreed by the experts I therefore award the following:
    

a) Purchase price of £283,333 to be reduced by applying the Swift v Carpenter calculation

b) Adaptation costs (without therapy room): £131,463.32

c) Car port costs £11,800

d) Relocation costs £10,000

e) Increased running costs of £4,500 per annum


Transport


73. There is a clear need for Miss Martin to have access to a car. Public transport is limited and less convenient for her and taxis are not always accessible. Miss Martin must have appropriate and reasonable freedom to travel when she wants to. In my judgment a car is the best way to provide that. I understood Miss O'Farrell to accept that Miss Martin needed to have access to a wheelchair accessible vehicle. Mr Ford felt that future Motability funding cannot be guaranteed.
    
74. Miss Martin's schedule of loss seeks the sum of £322,298 over her lifetime in respect of the provision of a car. This is based on an initial cost of £18,495 with a replacement vehicle every 3 years and includes the annual cost of insurance for a carer to drive the car (and any other vehicle) at £10,794. The defendant submits these costs are manifestly excessive.
    
75. Miss Martin told me (as I have set out above) that in the past she had a Motability vehicle but had returned it because she had no one to drive her and it was eating into her benefit. She told me that she "had no reason not to use Motability in the future".
    
76. I was referred to Eagle v Chambers no.2 [2004] EWCA Civ 1033. At paragraphs 55 to 59 the Court of Appeal concluded that a person in receipt of a relevant mobility benefit could not be required to mitigate her loss by investing a portion of that benefit in the Motability scheme. It is not therefore open to the Defendant to argue that Miss Martin can be required to mitigate her loss by relying on the mobility scheme.
    
77. The Defendant's argument is however different. It submits that Miss Martin has expressed a willingness to use the scheme in the future and so it would in principle be wrong to make an award of damages in respect of a benefit that will be provided to Miss Martin by the State (albeit with a nominal charge). In closing submissions, the claimant recognised the practical benefits of the Motability scheme. It was not argued, as Mr Ford had suggested, that future funding for a vehicle through the Motability scheme "could not be guaranteed".
    
78. I am satisfied, given the evidence that Miss Martin will use Motability in the future, that an award of damages for the privately funded provision of a car would be inappropriate and amount to double recovery.
    
79. The claimant argues for an additional sum to reflect additional travel expenses which arise as a result of her disability. The defendant accepts the principle ("the claimant will have additional expenses by reason of her physical disability to include additional journeys") and suggests a figure in the region of £8,000 in total would be appropriate. This sum is an approximation; it is based on a concession that in the absence of provision for a car, Miss Martin would have been entitled to a reasonable sum for taxi travel put at £1,000 per year with a multiplier of 8. Miss Martin suggests that the sum of £43,785 is appropriate, arrived at my applying the lifetime multiplier to and annual allowance of 5,000 "disability related miles" at the rate of 45p per mile.
    
80. In my judgment the defendant's concession that some allowance for disability related mileage ("DRM") should be allowed is appropriate. In my judgment, accepting that there is little evidence on the point (but doing the best I can) it would be appropriate to make an award on the basis, as the defendant suggests, of 1,000 miles per year but not on a multiplier of 8. Taking account of the possibility of future admission for mental health care which would reduce the period for which DRM might be claimed and bearing in mind the agreed lifetime multiplier is 19.46 I propose to apply a multiplier of 16 and so award the sum of £16,000 in respect of travel.
    

Loss of Earnings


81. The claim is pleaded as loss of congenial employment. It is accepted that, as no congenial employment was lost, there can be no award under that head. However, Miss Martin argues that she should be compensated for simple loss of future earnings. It is accepted that any such award would be modest.
    
82. Miss Martin had worked in the past but has no established history of work. The schedule of loss suggests that (but for the injury caused by the defendant) "it is likely that the Claimant would have been able to seek supported remunerative work, for example, working in a charity shop." There is no evidence to suggest what might have been earned. The defendant suggested that employment would have been therapeutic only.
    
83. I accept, having heard her evidence, that Miss Martin would have been able to find some, limited, low paid, short term remunerated work but for the defendant's negligence. She appears to have enjoyed work and certainly has a desire to work with others. In the absence of any evidence as to her earning capacity I am obliged to take a cautious approach to assessing an appropriate sum. In my judgment an award of £5,000 would be appropriate.
    

PPO


84. The parties agree that consideration of whether or not a PPO should be made, should be dealt with after the circulation of this judgment.

Capacity


85. Miss Martin's capacity to manage and control any money recovered by her in these proceedings is in issue.
    

The test


86. The Mental Capacity Act 2005 (supplemented by the Code of Practice published in accordance with sections 42 and 43 of the Act) sets out the statutory framework against which an individual's capacity is to be judged. The starting point (the first of 5 statutory principles) is that an adult is to be presumed to have full legal capacity to make decisions for themselves unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be taken (see para.1.2 of the Code). The second statutory principle is that a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success. The third statutory principle is that a person is not to be treated as unable to make a decision merely because she makes an unwise decision.
    
87. Practical steps to support a person in decision making include the provision of advice. Professor Wang readily accepted that such advice may need to be given slowly and in a deliberate manner and may need to be repeated.
    
88. Chapter 4 of the Code provides practical guidance on how capacity should be assessed. There is a 2-stage test (see section 2(1) of the Act): first, does the person have an impairment of the mind or brain? Secondly (and if so), does that impairment mean that the person is unable to make the decision in question at the time it needs to be made? A person is unable to make a decision if (see para.4.14 of the Code) they cannot:
    

a) Understand relevant information about the decision to be made (such information must be appropriately presented and includes the nature of the decision, the reason the decision is needed and the likely effects of deciding one way or the other)

b) Retain that information in their mind to the extent necessary to make a decision

c) Use or weigh that information as part of the decision-making process or

d) Communicate their decision


The evidence on capacity


Impairment of the mind or brain


89. Miss Martin underwent an MRI scan of the brain on 5 November 2010. It is agreed (and recorded in the joint report of Dr Das and Dr Birchall consultant neuroradiologists instructed respectively by Miss Martin and the Defendant) that the scan demonstrates evidence of cortical and subcortical white matter hyperintensity involving the right frontal, right parietal and left frontal lobe. It is also agreed that Miss Martin's neurological status is unlikely to worsen during her lifetime and that the brain injury has not caused significant cognitive deficit. The potential that the brain injury has caused some cognitive deficit remains open.
    
90. It is therefore accepted that Miss Martin has an impairment of the mind or brain. The issue in dispute is whether that impairment means that she is unable to make the relevant decision at the time it needs to be made.
    

Does the impairment mean that Miss Martin is unable to make the decisions necessary to manage her award?


Dr Dilley and Professor Wang the Claimant's experts


91. The field of expertise best suited to provide assistance with capacity (and in particular cognitive and executive impairment) is neuropsychology. I turn to the evidence of the neuropsychologists below, but first will deal with Dr Dilley's evidence.
    
92. Dr Dilley, a consultant neuropsychiatrist instructed as an expert by Miss Martin, saw her in Agricola House on 21 September 2015. He was instructed to prepare a condition and prognosis report and advise on the counterfactual position had Miss Martin not suffered injury. As part of his investigation, he conducted what he described as "a few basic tests" into her cognitive state. He noted that Miss Martin scored 82/100 in the Addenbrooke's Cognitive Examination and told me that this was the cut-off point for dementia but accepted that cognitive function is not part of the test of capacity set out in the 2005 Act. He told me that the score led him to suspect some cognitive impairment. The conclusion expressed in his report was that Miss Martin had capacity to manage finances, conduct litigation and had testamentary capacity.
    
93. Dr Dilley recommended further neuropsychological assessment to determine the extent of any executive impairment/dysfunction and any cognitive deficit.
    
94. Professor Wang saw Miss Martin on 10 December 2019 at Wythenshawe hospital. He told me that he interviewed Miss Martin over a 90-minute period after psychometric tests had been carried out by an experienced colleague over some 6 hours and following discussion. His report is dated 6 February 2020. He noted that Miss Martin had failed effort tests (the Test of Memory Malingering ("TOMM") and the Reliable Digit Span ("RDS") test) but told me that was not unusual for frontal lobe patients. The score did not suggest deliberate malingering and Professor Wang was clear that there was no suggestion of deliberate underperformance. He was however clear that the results did imply poor effort.
    
95. Dealing with cognitive and functional impairment (as mentioned by Dr Dilley) he expressed the opinion that Miss Martin had demonstrable cognitive impairment caused by her brain injury which compromised her assimilation of information, an impairment of memory which limited her ability to retain information and executive impairment which comprised her ability to weigh issues. Professor Wang and Dr Dilley importantly agreed that the best way to assess executive dysfunction was to observe a real-world setting.
    
96. Dr Dilley saw Miss Martin again on 25 September 2019 at Wythenshawe Hospital (after she had been recalled). This time he was specifically asked to comment on her capacity to manage her own financial affairs and specifically to manage a large award. By the time he wrote his report on 26 March 2020 (I note some 6 months later) he had seen and considered the report of Professor Wang from 6 February 2020 (referred to above). Dr Dilley questioned Miss Martin about how she would manage a large award, she said she would seek advice from independent professionals and from trusted family members and wanted to "investigate other opportunities for investment" when asked how she would assess competing advice she said she would "go by [her] gut not [her] heart" and expressed a preference to have any monies managed in a trust.
    
97. Dr Dilley felt when completing his report as he did during his evidence that executive dysfunction was important. To put it simply Miss Martin could persuade an observer that she was quite capable of understanding the mechanics of appropriate decision making but would be potentially incapable (by reason of her abnormality of brain at the front left lobe) of actually weighing factors before taking a decision. There would be a potential for a mismatch between her intention as she described it and her actions. He accepted that the presence of executive dysfunction does not lead inexorably to the conclusion that a patient lacks capacity. A fair summary of his position is that an absence of executive ability might mean there is a lack of capacity. It certainly means that an ability to describe the processes of decision making is not a sure indicator of capacity.
    
98. Professor Wang provided a further report on 4 May 2021, shortly before trial. He confirmed his view that Miss Martin lacks capacity and "this relates to an interaction between impairment of executive function which compromises the ability to make and weigh judgements, combined with variable and unpredictable mood state due to her psychiatric condition: episodes of low mood will worsen her cognitive function."
    

Dr Clarke – the Defendant's expert


99. Dr Clarke carried out psychometric tests on 22 September 2020 at the Wellington Road flat. He was instructed to comment on any impairment of Miss Martin's cognitive or executive function and in particular on her capacity to manage her financial affairs.
    
100. He describes in his report Miss Martin's general fluency, coherence and good recall. He describes for example that Miss Martin was able to give clear and accurate guidance to carers who arrived at lunchtime about the correct preparation of a microwave meal and the need to differentiate between the "cook from frozen" and "cook from chilled" instructions. He also describes Miss Martin's ability to organise a medical visit whilst Dr Clarke was present at a time that did not clash with her carers. He reports that he found Miss Martin to be "fully financially competent" noting that he had "no areas of doubt".
     
101. In his evidence Dr Clarke accepted that Miss Martin had some history of making poor decisions (including financial decisions). He felt that those decisions might be a function of her personality disorder and what he described as her "traumatic life" rather than a sign of cognitive impairment. He pointed out that there was a long history of such decision making and that the pattern was well established before the injury. His view was the psychometric test results relied on by Professor Wang as the basis of his view that Miss Martin lacked financial capacity were unreliable for a number of reasons: he was concerned about low scores on the effort test (but did not suggest that the lack of effort was deliberate) and concerned about inconsistency in the outcome of tests he carried out and those relied on by Professor Wang.
     
102. His main concerns, however, were that Professor Wang's test results did not reflect his observations of Miss Martin in a real-world setting over 6 hours and that the variable test scores were not reliable. He felt that her traumatic background was key and that she had learnt that "certain behaviours will result in greater levels of support" and told me that his observations of her were "of a very competent individual". His evidence was that in a clinical environment, persons with executive dysfunction can do well. But that changes when new issues are introduced (he told me that he would expect a person with executive dysfunction to be unable to cope with the complexities of everyday life. He said that such complexities would produce "cracks and deficits"), for example Dr Clarke interviewing her at home, Miss Martin's interaction with carers and her GP would highlight dysfunction. In fact, from his observations, he reported that Miss Martin interacted well, and dealt with complex situations well, he told me that he had questioned her about finances and that she had dealt well with them. It was suggested to him that he had based his view on a simple snapshot in time. He disagreed and told me that in assessing capacity he had "used all tools at his disposal".
     
103. Dr Clarke provided a further report on 7 May 2021. He noted that Professor Wang had not provided examples "from his assessment of the Claimant having a 'compromised ability to make and weigh judgements'. Rather, he refers to "clear examples of her poor judgement of character in her recent history" (paragraph 7). I agree that there are examples of poor decision making and poor mental health, but in my opinion, these do not equate to lacking Capacity according to the guidance set out in the Mental Capacity Act (2005). I also acknowledge that during acute phases of poor mental health the Claimant will lack Capacity, and I defer to the expert Psychiatry opinion on this matter. However, during assessment with this writer there was no evidence of her lacking Capacity with regard to finance or legal proceedings, and this was specifically tested with the Claimant. The Mental Capacity Act (2005) requires assessments to focus on specific decisions and to refer to specific times".
     

Other evidence


104. I heard evidence from Mr Higgins, Miss Martin's father. He told me that he was concerned that Miss Martin would not take advice about how to invest money and is particularly vulnerable. He was "astonished" to learn that the Defendant felt that Miss Martin had capacity. In his third and most recent witness statement, Mr Higgins recalls that Miss Martin had had dealings with a third party, Tinisha Cotterill, who owned (or worked in) a local shop. Tinisha provided some care after Miss Martin's discharge from hospital in March 2020 and had been paid a carer's allowance. Miss Martin described in her evidence how Tinisha had become increasingly unreliable until it ceased completely. Mr Higgins recalls that he was "suspicious of" Tinisha. He said that Miss Martin: "once mentioned to me that Tinisha had asked her to loan her a large sum of money, around £10,000, so that she could invest in a business. This was around the same time that Celine's interim payment of £10,000 had been approved. I told Celine that under no circumstances should she be providing Tinisha with any money, as Celine's money should be used to purchase items to assist Celine with her injuries."
     
105. I also heard from Miss Martin and had an opportunity to observe how she responded to questions. She recalled Dr Clarke's visit and recalled that her GP had visited that day. She assured me that she was tried to deal with all psychometric tests as best she could. She was very clear that she was trying to do her best. She told me that she is "a trier; I never give up". She told me that she understood she is vulnerable to exploitation and told me that she prefers to have the court manage her settlement. She was clear that she would seek advice.
     

Discussion


106. Both Professor Wang and Dr Clarke gave their evidence with care and the professionalism I would expect of well-respected and experienced experts. The same applies to Dr Dilley. I have come to the conclusion on the totality of the evidence that I must generally prefer Dr Clarke's evidence over that of Professor Wang and Dr Dilley.
     
107. It is important to note that Dr Dilley's initial view that Miss Martin had financial capacity was only displaced after he had seen Professor Wang's assessment. On balance I think that Dr Dilley's evidence adds little to the resolution of the question of capacity.
     
108. It seems to me that Professor Wang had far less an opportunity than Dr Clarke to assess (in an admittedly important "real world setting") Miss Martin's executive function. Dr Clarke saw Miss Martin in the midst of real life, not in a clinical controlled setting. He observed her balance demands on her time, recall details, juggle facts and make decisions in the manner he described. I can well understand why when expressing his professional opinion about capacity he had "no areas of doubt".
     
109. I am satisfied that Dr Clarke's "real-life" observations of Miss Martin are of greater evidential value than the results of psychometric testing. I accept that the poor effort scores further undermine the validity of the tests. Professor Wang placed a great deal of store on the test results, once they are (as I find them to be) undermined, Professor Wang's position becomes difficult to sustain.
     
110. I accept (as she did) that Miss Martin is vulnerable to suggestion by others. On the balance of probabilities, I am satisfied however that the vulnerability does not arise from her brain injury but rather, as Dr Clarke suggested, from her personality disorder.
     
111. I noted that Mr Higgins had advised his daughter not to lend £10,000 to Tinisha. It seems to me that this is a good example of a potentially difficult situation in which Miss Martin sought advice and acted on it. In other words, although she has a vulnerability to exploitation arising from her personality disorder, she has (in the past, but since discharge from hospital in March 2020) shown herself capable of retaining information (relaying Tinisha's request for a loan to her father), recognising the need to take soundings or advice from a trusted person (not simply handing money over to Tinisha) and capable of listening to and acting on advice. There was no suggestion that the £10,000 was handed over.
     
112. In my judgment, the evidence falls short of that needed to displace the presumption of capacity.
     
113. The consequence of my finding in respect of capacity is that Miss Martin is not entitled to any damages in respect of the costs of a Deputy or Court of Protection costs. The present schedule of loss pleaded such losses at between £74,288.90 and £147,325.70. Had I concluded that Miss Martin lacked capacity there would have been an application to amend the schedule of loss to increase the claim to between £195,747 and £464,470.

Application to amend

114. Miss Martin has in the past expressed a desire to have the damages she is awarded managed by others. There are numerous references in the trial bundle to such discussions and I have set out above that the point was raised specifically by her with Dr Dilley. During opening the possibility of a personal injury trust was canvassed as an alternative, in the event that I found Miss Martin to have capacity, to the Deputyship claim. No such claim had been pleaded. An application to amend to include it was made at the conclusion of the trial.
     
115. The application is supported by the evidence of Helen Lewis, Miss Martin's solicitor. It exhibits a further witness statement (provided by Mr Michael Knott) detailing the costs involved in the establishment and running of a personal injury trust. The exhibited statement is dated 13 May 2021 and is supported by a statement of truth signed by Mr Knott. Mr Knott has already provided a statement to deal with deputyship costs. For my part I do not think it is ever necessary to exhibit a signed witness statement to another witness statement. CPR PD 32 paragraph 13.2 makes good the general proposition that if a document is self-providing (like a court document and in my view a witness statement) it need not be exhibited.
     
116. Mr Knott suggests that the first-year management cost would be £26,400. The year 2 costs £24,000 and the annual costs thereafter £19,200. With appropriate multipliers the potential total claim for damages payable in respect of a personal injury trust amounts to £385,680. I am invited to allow an amendment to the schedule of loss to include that sum. I am also invited to give permission for Miss Martin to rely on Mr Knott's statement.
     

The applicable principles applying to amendment


117. Summarising the position at paragraph 41 of Nesbit Law v Acasta [2018] EWCA Civ 268, Sir Geoffrey Vos (then as Chancellor of the High Court) said:
     

"In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it."


118. The parties referred to Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) a decision of Carr J (as she then was). The salient points (in addition to those referred to above) are:
     

a. An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The test to be applied is the same as that for summary judgment under CPR Part 24. Thus, the applicant has to have a case which is better than merely arguable.

b. A very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept.

c. Where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users require him to be able to pursue it.


The arguments


119. Mr Feeny resists the application. His main submission was that the need for a personal injury trust does not arise as a result of the Defendant's negligence and so the amendment should not be permitted. He also submitted that there was no good reason why the amendment was not sought much earlier (in effect the need to plead an alternative case which would arise if Miss Martin was found to have capacity had been overlooked) and suggested that I should apply principles similar to those that apply when an application is "very late". He conceded that if the application had been made earlier the course of the trial would have been no different.
     
120. In response Miss Ruck submits that the balance referred to by the then Chancellor in Nesbit strongly favours the grant of permission. She points out that the parties have been aware of the issue for some time (the need for a personal injury trust is referred to at paragraph 1.29 of the original schedule and the Defendant engages with the principle in the counter-schedule. Also, the point was raised at a joint settlement meeting on 26 March 2021 as explained by Mrs Lewis at paragraph 16 of her statement) and that the application would survive a summary judgment test and so is sufficiently meritorious to be permitted. Miss Ruck accepts that the application is late by reason of oversight.
     
121. No point is taken on limitation.
     

Determination


122. I am satisfied that the claim for damages sought to be advanced by the proposed amendment is one that would survive an application for summary judgment without too much difficulty. In my judgment it is clear that "but for" the Defendant's negligence, there would be no need for a personal injury trust. The requirement that Miss Martin take control of a large fund of money, and so be exposed to the risk of pressure from others to fritter away the fund, would not arise if the Defendant had not been negligent.
     
123. The amendment is not a "very late" amendment in the sense outlined in Quah Su-Ling because the trial has proceeded. Nonetheless, in exercising my discretion I must take into account the late stage at which the application is made and the reasons for the lateness. Mr Feeny's sensible concession that the trial would not have progressed differently if the application had been allowed before trial is important, but is not a complete answer.
     
124. I accept the frank explanation provided by Miss Ruck that the claim was omitted from the schedule by simple oversight. However, I must also accept Mr Feeny's submission that such an error (although entirely understandable) does not amount to a good reason for the lateness of the amendment. The reasons given by the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at paragraph 41 in respect of failure to comply with procedural deadlines apply with equal force here. I accept that the absence of a good reason for the lateness is a factor which militates against the grant of permission.
     
125. In considering the interest of justice, it is helpful to look at what would happen if the amendment is allowed and if it is not allowed.
     
126. If the amendment is not allowed, Miss Martin would be deprived of the opportunity to argue for full compensation in respect of the loss she suffered as a result of the defendant's negligence. She would be undercompensated (because she would on the balance of probabilities use compensation intended for other purposes to pay for a personal injuries trust). To address that under compensation she may need to consider further litigation and the instruction of new solicitors. That would inevitably lead to a delay and carry its own risks. If the amendment is not allowed it might fairly be said that the Defendant would benefit from a windfall.
     
127. If the amendment is allowed the defendant will suffer no real prejudice (the avoidance of a windfall is not in my view prejudice). Mr Feeny does not suggest otherwise.
     
128. Taking account of the strength of the claim to be advanced if the amendment is allowed and bearing in mind the absence of a good reason for failing the plead the claim earlier, I have come to the clear view that the amendment should be allowed.
     

Consequences of allowing the amendment


129. The Claimant relies on the second statement of Mr Knott. I will grant permission to rely on that statement in the amended claim.
     
130. The parties invite me to make further directions in respect of the next steps following amendment. I invite the parties to agree directions if possible. If there is no agreement I will deal with directions as part of the consequential orders following hand down of this judgment.




Conclusion


131. I invite the parties to agree an order to reflect the conclusions I have reached in this judgment. In summary, I award damages on the following basis:
     

a. Care (paragraphs 57 to 59): Miss Martin should have 2 day-time carers or support workers for 14 hours per day 7 days per week at an hourly rate of £12 with one carer/support worker to be paid an enhanced rate of an additional £5 per hour for 36 hours and one night-time sleeping carer and a personal assistant. In addition the costs of employing carers ("on-costs") should be added to this in the amount provided for by Mr Ford, that is 36% of the base cost.

b. Miss Martin should have a case manager with a one-off set up cost of £15,188.62 and an annual cost of £8,886 (paragraph 64).

c. Accommodation as set out at paragraph 72 above

d. Transport: (paragraph 80): £16,000

e. Loss of Earnings (paragraph 83) a one-off award of £5,000