Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 75

A538/11

OPINION OF LORD UIST

In the cause

JAMES ROEBUCK FRAME GOOD

Pursuer;

against

LANARKSHIRE HEALTH BOARD

Defender:

Pursuer:  Primrose QC, Davidson;  Thorntons Law LLP

Defender:  Anderson QC, Neil Mackenzie;  NHS Scotland Central Legal Office

9 June 2015

Introduction

[1]        The pursuer, who was born on 9 June 1943, is a retired steel worker who suffered a traumatic amputation of his left hand and forearm in an accident in the course of his employment in the early 1980s.  On or about 28 December 2004 he fell from a kerb in Wishaw as a result of which he sustained a basi‑cervical fracture of the neck of his left femur.  He was admitted to Wishaw General Hospital for an open reduction and internal fixation operation.  The operating surgeon achieved a satisfactory fixation at the operation site and the pursuer was discharged with plate and screws in situ.  

[2]        Treating surgeons at Wishaw General Hospital thereafter decided to treat the pursuer with a two‑stage procedure, consisting of removal of the metal work in the first instance and subsequently, after a gap of several months, a total hip replacement.  He was admitted to Wishaw General Hospital for removal of the metal work on 29 November 2005, but the operation was cancelled that day due to lack of theatre time and x-rays were taken of his left hip.  The pursuer’s name was put on a waiting list.  On 25 July 2008 he attended Wishaw General Hospital for pre‑operative discussion of the planned surgery.  On 16 September 2008 the operation to remove the metal work was carried out at Wishaw General Hospital.  The pursuer subsequently developed a significant post‑operative infection which required urgent surgical treatment (debridement and removal of the implant) in early October 2008.  The treating surgeon negligently advised that an attempt should be made to retain the implant.  On 7 October 2008 another surgeon operated on the pursuer at Wishaw General Hospital in an unsuccessful attempt to debride the wound without removing the whole of the implant, resulting in ongoing sepsis.  The whole implant should have been removed to minimise the risk of continuing infection.  On 13 October 2008 the pursuer underwent a second debridement operation in the course of which it was noted that the whole joint was infected with a large amount of pus and that his proximal femur had been fractured.  The operating surgeon removed the femoral component of the implant but negligently failed to remove the acetabular component.  

[3]        After these two operations in October 2008 the pursuer remained as an inpatient at Wishaw General Hospital.  On 17 November 2008 x-rays were taken of his left hip.  His wounds were regularly photographed thereafter.  On 19 February 2009 he was moved to Udston Hospital in Hamilton for further inpatient care.  His hip infection did not resolve.  He continued to suffer and exhibit obvious signs and symptoms of chronic sepsis (such as a weeping or suppurating wound) without appropriate surgical intervention.  From November 2008 until August 2010 he was unsuccessfully treated with prolonged courses of antibiotics.  During that period he required urgent surgery consisting of full debridement of the infection site and removal of the acetabular component of the implant.  Such treatment was negligently delayed until 2 August 2010, when the necessary operation was carried out.  The pursuer was thereafter an inpatient for approximately 15 weeks, during which time his wound healed.  The pursuer has not received another implant and there are no plans to provide him with one.  He is therefore without a left hip.  As a result of the negligent debridement operations and the negligent failure to organise appropriate surgery when he was suffering chronic infection the pursuer has suffered the loss and injury detailed below. 

[4]        The defenders having admitted liability, the case called before me for a proof on quantum.  It was agreed that  a multiplier of 10 should be applied from the date of the proof in respect of the calculation of future care and other costs, losses and expenses which will continue to be incurred over the remainder of the pursuer’s life.  I heard evidence from the pursuer; his nephew Alan Carbray;  John Biggar, a partner in Anderson Strathern, Solicitors and an accredited specialist in trust law;  Jayne Brake, Director of Rehabilitation with J S Parker Ltd, Sheffield;  Hannah Cairns, an occupational therapist;  Sue Raine, a physiotherapist;  Debbie Strang, also a physiotherapist;  Fenella Parry, a case manager with JSP Scotland;  and Helen Buri, a specialist in rehabilitation of people with orthopaedic injuries.  With the exception of Helen Buri all these witnesses were led on behalf of the pursuer.  Before I turn to consider the various heads of damages which have not been agreed I deal with the pursuer’s background, his injuries and their effect upon him.

The pursuer’s background
[5]        The pursuer was brought up in Motherwell.  He is unmarried and has no children.  He left school at the age of 15 and went to work in steelworks in Motherwell.  He lost his left hand and part of his left forearm in about 1980 when it became trapped in rollers.  After that accident he worked on a weighbridge for three years.  He was then made redundant and has not worked since then.  He initially lived with his mother and then rented a council flat on the 21^st floor of a high rise block in the Townhead area of Glasgow.  He was able to do the household chores, shopping and decorating.  He spent his time watching football on television, attending the football matches of the team he supported, going to the pub, playing pool, visiting his aunt and uncle in Morecambe and friends in Bridlington.  He also visited his nephew and friends in Wishaw and stayed with his sister in Motherwell at weekends, but he could no longer stay with her as he could not manage the stairs.  After the problems with his leg he became a resident in Kirknowe Nursing Home from April 2009 until April 2014, with the exception of the period of 15 weeks he spent in Wishaw General Hospital between July and November 2010.  The accommodation in Kirknowe was unsuitable for him.  His room was small, he spent most of his time in it watching television and he had a shower or bath only once a week.  He was restricted in where he could go.  Most of the residents were very elderly, some could not walk or speak and some were demented.  He was the second youngest resident.  He thought that there were too many women there.  He moved into a house at 60 Roberts Street, Wishaw in or about March 2014.  His nephew had found it for him on the internet and it had been purchased on 13 December 2013.  The purchase price was £181,181, paid for out of a payment of interim damages from the defenders.  Adaptations had been carried out to make it more accessible for a wheelchair user.  It was near to the centre of Wishaw and convenient for the shops.  The exterior and interior of the house are shown in the 33 photographs forming 6/60 of process.  The pursuer’s care manager Fenella (Fen) Parry had organised the care package for him when he moved in.  He was looked after by three carers a day.  The house was bigger than the flat in which he had previously lived and a lot dearer to run.  His nephew had acquired a vehicle for him so that he could be taken on trips by the carers.  The pursuer loved his new house and was happy with the care set-up.  

The pursuer’s injuries

[6]        The pursuer’s injuries are detailed in the medical report 6/3 of process dated 12 May 2013 (when he was living in Kirknowe Nursing Home) by Professor T W R Briggs, Consultant Orthopaedic Surgeon at the Spire Bushey Hospital in Bushey, Hertfordshire.  He recorded his examination of the pursuer as follows:  

“A pleasant gentleman who is able to sit in his chair comfortably and is able to walk.  When he does so he leans on his Zimmer frame which has gutters for the forearms.  He walks with a significantly short left leg, standing on tiptoe, and the leg is significantly externally rotated.

When he moves to the bed, he has an electric bed which he can elevate at the head end.  He also has a monkey pole and an arm holder which he can use to manoeuvre himself around the bed.  He is able to remove his trousers using his right arm and then uses the extensor support to remove his trousers, using his right hand.  To manoeuvre himself around the bed, once he has elevated the head end, he uses the monkey pole in his right arm to manoeuvre himself into the middle of the bed.  However, he is unable to put his socks on, although he can remove them.  Every morning the carers put his socks on for him.

When he lies flat, his left leg is short and lies in about 80% of external rotation.  He has no neurovascular deficit in the feet with excellent power of dorsiflexion and plantar flexion, and both posterior tibial pulses are present.  

Looking at his right hip, it will flex from 0-100°.  He has full extension, abduction 40°, adduction 30°, internal rotation is to 10°, external rotation is to about 75°.  

Looking at his right knee, it is well-aligned.  He has no effusion, a range of movement of 0/0/130°.  There is no joint line tenderness and no instability.  Alignment of the right leg is excellent.  

Looking at the left leg, all the shortening lies above the knee.  

Looking at his left hip, he has a 30 cm well-healed scar that has clearly been opened on multiple occasions.  The left hip lies in fixed external rotation of about 70°.  He has a fixed flexion deformity of about 15° and the hip will not actively flex and will not passively flex.  He has no active or passive abduction from neutral.  He has a jog of adduction.  The hip, from its fixed position in about 75°of external rotation, has no further active or external rotation.  

On examination of the left knee, it will go fully straight but will only flex to about 70°there is no pain to palpation.  The knee is stable to valgus/varus stressing and stable to anterior and posterior drawer.  When he tries to flex the knee, because of the external rotation he brings the knee across the other leg.  

Looking at his left ankle, dorsiflexion is just neutral, plantar flexion is about 10°.”  

Professor Briggs stated his prognosis in the following terms:  

“His present state is permanent and he will need the current level of care that he has at present and will be ongoing (sic).  Over the next ten years his ability to climb in and out of bed and to transfer may deteriorate and he will need further care at an advanced level.”

It was agreed in a joint minute that but for the negligently performed operation on 7 October 2008 the pursuer’s mobility would gradually have deteriorated by approximately 10% from his post-operative recovered state and that the deterioration would have commenced in or about October 2018 and progressed until the end of his life. 

Solatium
[7]        The submission for the pursuer was that the starting point in the assessment of solatium was to look, not at damages for hip injuries, but at damages for paraplegia on the ground that the pursuer was confined to a wheelchair.  It was accepted that he did not suffer from bowel, bladder or sexual dysfunction, and that he could walk about four or five metres.  Awards for paraplegia were relevant because he had been confined to a wheelchair since the negligent operation.  He was unable to walk to any extent.  He had spent an inordinate amount of time in hospital or a nursing home.  He had suffered from a very severe infection for two years.  He had been institutionalised to a great extent during his five years in the nursing home, when he had been in an unsuitable environment with very little freedom and spent a large amount of time watching television on his own until he eventually had limited excursions of short duration in his wheelchair.  He had formerly lived independently in spite of his pre-existing disability and now found himself in a wheelchair with his left foot rotated.  The absence of any bowel or bladder dysfunction had to be set against the infection which he had suffered and the two additional operations.  His life had been on hold for five years and his life expectancy had been reduced.  Reference was made to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, 12^th  Edition (“the Guidelines”) at section 2(b);  Kemp and Kemp on Quantum of Damages, Vol 3, paragraphs A2-002 to A2-009;  and Paterson v Lanarkshire Acute Hospitals NHS Trust 2004 SCLR 1062.  The award of solatium should be £150,000.  

[8]        The submission for the defenders on solatium pointed out that the evidence showed that before the admitted negligence the pursuer was able to live independently with the aid of equipment such as grab rails;  pay his bills;  dress himself, using aids and acquired techniques;  take a bath twice a week without assistance;  go to the toilet with the assistance of mobility aids;  heat ready‑made meals in the microwave and make hot drinks;  go out using a crutch or walking sticks;  and attend football matches, the pub and an ex‑servicemen’s club.  He could still dress himself (apart from putting on his pants, socks and shoes) using aids and acquired techniques; pay bills; use a gutter frame for walking short distances inside;  carry out transfers, for example, from a suitably raised toilet or his bed or seat to his gutter frame or wheelchair;  go to the toilet independently;  shower;  use a George Foreman grill and heat ready-made meals in the microwave;  heat drinks;  and go out alone using a powered wheelchair.  On the other hand, he could not now live entirely alone;  reach items in accessible places, such as high cupboards or the back of the fridge;  go out using crutches or walking sticks;  take a bath without assistance;  or apply medicated creams.  Reference was made to section 7(D) of the Guidelines, dealing with severe injuries to the pelvis and hips, which recognised that the most serious of such injuries could be as devastating as a leg amputation and would accordingly attract a similar award of damages and stated that the range of awards was between £57,600 and £96,250;  Short v Bro Taf HA [2001] 6 QR 13 (Kemp & Kemp, The Quantum of Damages, Vol 4, H1-009);  Macey-Lillie v Lanarkshire Health Board 2001 SLT 15;  Thrul v Ray [2000] PIQR Q44 (Kemp & Kemp, Vol 3, A4-006);  and Moses v County Durham HA [2003] 2 QR 9 (Kemp & Kemp, Vol 4, H1_004).  It was submitted that in all the circumstances the award of solatium should be £70,000 with interest on half that sum until the award of interim damages was paid on 24 October 2013. 

[9]        It is clear to me that the pursuer’s life has been hugely affected by the negligent treatment which he received and which in itself caused him considerable suffering.  The worst effect of it is that he has lost his mobility and is now effectively wheelchair‑bound.  This affects all aspects of his life.  It must be borne in mind that the pursuer was previously disabled as a result of the loss of his left arm and the injuries have had a greater effect on him than they would have on an able-bodied person.  On the other hand, his injuries, serious though they are, do not amount to paraplegia and the award of solatium must reflect that fact.  In my opinion the figure suggested as solatium by the defenders is far too low and would not adequately compensate the pursuer for his injuries.  Having considered the submissions of counsel, I have reached the conclusion that an appropriate award of solatium in this case is £135,000 with interest on half that sum until 24 October 2013.  

Accommodation
[10]      It was initially maintained by the defenders that the pursuer should have obtained sheltered accommodation at Phyllis Jane Court in Wishaw from North Lanarkshire Council, thus obviating the need for him to buy and adapt his own property.  In light of the evidence led that suggestion was departed from and ultimately there was no dispute that the house which he had bought was reasonable for his needs.  In any event, had there been a dispute I would have held that the house was reasonably necessary for him.  While resident in Kirknowe Nursing Home his contribution to the cost of staying there did not exceed the cost of living in his flat in Glasgow and he therefore has no claim for accommodation during the period he lived at Kirknowe.  Damages for the cost of purchasing the house fall to be calculated in accordance with the formula laid down in Roberts v Johnstone [1989] QB 878.  Additional accommodation costs (electricity, gas, gardening, home maintenance and telephone bills) have been agreed.  It was submitted for the defenders that there should be a deduction of £10,000 for betterment as the pursuer no longer lived in a rented one bedroom flat in a tower block but now owned a three bedroom house with two public rooms, a conservatory and a garden.  They also raised the question whether a deduction ought to be made to reflect the fact that the pursuer now had a bigger property than he needed and thus had somewhat inflated heating, lighting and maintenance bills.  I decline to make any deduction for betterment or for increased household bills.  While the pursuer now lives in a much better house than he formerly did, he had almost no option in his choice of house to buy.  Mr Carbray explained that the two main criteria for a suitable house for the pursuer were that it had to be on one level and in the right location, close to Wishaw Town Centre.  Mr Carbray searched for a suitable property for about a year.  Three properties were identified:  one was too big, the second sold within a short time and the one which was purchased fulfilled the criteria.  I do not consider that the pursuer has in any way acted unreasonably in purchasing the house at 60 Roberts Street, Wishaw.  In any event, I consider that any betterment arising from the purchase of 60 Roberts Street is offset, financially and otherwise, by the period he spent living in Kirknowe. 

Care
[11]      On this issue I heard evidence from Jayne Brake, Fen Parry and Helen Buri.  Miss Brake, whose reports are 6/5 of process dated 31 July 2013 and 6/31 of process dated 4 May 2014, proposed 60 hours of care per week.  She had originally assessed care at 82 hours per week, but reduced it to 60.  She proceeded on the basis of what she described as an enabling approach, the purpose of which was to provide the pursuer with as much independence as possible within the confines of his new disability.  The 60 hours which she proposed consisted of support from 8am to 4pm and from 9pm to 10pm for four days per week and from 8am to 11am and 5pm to 10pm for three days per week.  She suggested that this recommendation would allow the purser the flexibility to have four days out and three evenings out each week, whilst balancing this with giving him increased unsupported time at home.  She also proposed four holidays per year of two weeks duration for the pursuer, resulting in additional hours and costs.  

[12]      On the other hand, Miss Buri, whose reports are 7/2 of process dated 9 September 2013 and 7/3 of process dated 25 April 2014, proposed 47 hours of support per week, based on what she described as a compensatory approach.  She considered that the pursuer did not require support all the time because he was independent in many activities, slept well at night and could get in and out of bed independently.  It was essential that he had some support for routine chores as he could not reach for, fetch or carry items.  It was important to take into account his pre‑existing disability as he was unable to undertake complex cooking tasks pre‑accident.  The main difference from his pre‑injury condition was that he was now in a wheelchair or moved using a gutter frame.  She did not agree that the enabling approach was the correct approach in the pursuer’s case.  Such an approach was appropriate in the case of a person with a brain injury with complex, often cognitive, difficulties, who had to be prompted by the support worker.  Prompting was not really relevant in this case.  The pursuer, whose medical condition was static, did not suffer from any cognitive difficulties but he required assistance:  for example, he required someone to reach for an item at the top of a kitchen cupboard or to set up the shower for him and dress him afterwards.  The tasks for which he required assistance were fairly routine ones.  He was able to get out of bed, wash and dress himself and prepare drinks and snacks.  Her package would afford him choice by making sure there was somebody there to assist him with key tasks and otherwise afford him independence.  It was not appropriate that he should be mollycoddled by having someone there all the time.  In her report dated 25 April 2014 she stated:  

“I agree that it is appropriate for Mr Good to have agency carers attending to him in the morning on a daily basis.  This should be to assist with showering, lower half dressing, preparing breakfast/lunch, attending to domestic chores and setting up activities. 

I agree that Mr Good requires daily agency care every evening to assist with evening meal preparation and getting ready for bed.  

I support the need for additional care for outings, which Mr Good previously enjoyed prior to his injury.

I have set out my care proposals in my report of 9 September 2013. I note that I have recommended 5 hours of care per day for routine tasks (personal care, domestic assistance and meal preparation) to be appropriate for Mr Good’s needs.  He does not need assistance with transfers. He is safe to be alone for periods of the day.  He does not need overnight care.  He can come and go as he pleases in his powered wheelchair.

I have recommended 3 hours of extra support per week for outings.  The current care regime allows for significantly more time to be spent providing care for outings, namely an additional 5 hours per day after accounting for routine daily personal care/ meal preparation / domestic chores.  

Having met with Mr Good in his new home I accept that he is benefitting from having a vehicle which his carers can use and having care time to be able to enjoy community activities and visits which he would not otherwise be able to do.  However, I consider that an allowance of 5 hours of support per day for community outings is in excess of what is required.  I agree to increase the weekly allowance I have given from 3 hours per week to 12 hours per week.” 

[13]      Having considered the competing approaches of the care experts, I am not convinced by Miss Brake’s evidence.  I am persuaded that the approach of Miss Buri is the correct one and must be preferred.  I accept the submission for the defenders that the concept of “enabling” simply does not arise in this case in view of the pursuer’s static physical condition and the absence of any cognitive deficit.  I feel that the approach of Miss Brake has been affected by her experience in dealing mainly with persons suffering from brain injuries.  I thought that she was too prone to supposition and reluctant to concede in her evidence and I have reached the view that her assessment of the pursuer’s needs was exaggerated, resulting in an inflated figure for care.  Miss Buri has a background in occupational therapy and her area of expertise is in dealing with persons with orthopaedic injuries.  I found her to be an impressive witness and considered her approach to be realistic and sensible.  Moreover, I gained the impression that there were slack periods in the time spent by the carers with the pursuer, some of which seemed to consist of the carer just watching television with the pursuer, particularly in the evening when there for more than one hour.  The defenders should not be required to pay for someone just to provide company for the pursuer.  

[14]      Miss Buri accepted in her evidence that, if the cost of a case manager were not to be allowed, two hours per week should be added to the care regime to make up for the assistance which the pursuer receives from Mr Carbray.  In light of my finding below on the issue of the recoverability of the cost of a case manager these hours do require to be added.  I therefore allow a total of 49 hours per week of care from the date when the pursuer moved into the house at 60 Roberts Street. 

Personal injury trust            

[15]      The pursuer has a claim for the costs of setting up and administering a personal injury trust.  The principal purpose of a personal injury trust, as explained by Mr Biggar in his report 6/27 of process and in his oral evidence, is to prevent any award of damages from affecting the payment of means‑tested benefits.  It is disregarded capital, ring-fenced from current or future assessment.  He considered a personal injury trust to be essential in this case.  The pursuer had put the money from his interim damages award into a personal injury trust on the advice of his solicitor in Dundee. 

[16]      The defenders accepted that, in certain circumstances, the cost of administering a very seriously injured person’s estate might be recoverable (Forsyth’s Curator Bonis v Govan Shipbuilders Ltd 1988 SC 421, G’s Curator Bonis v Grampian Health Board 1995 SLT 652), but maintained that those circumstances required that the person was no longer able to manage his own affairs.  The test for whether the cost of administration of the award was recoverable was appropriateness rather than reasonableness:  a significant loss of intellectual function, a material inability to communicate or a very substantial physical incapacity was required (A v Powys Local Health Board [2007] EWHC 2996 at paragraphs 155-161).  None of the benefits which the pursuer was at present receiving was means-tested and while it was possible that he may require means-tested benefits in future, there was no evidence of how, when or why they might be required and it was reasonable to conclude that the possibility of their being required was a distant one.  Mr Biggar had accepted in evidence that personal injury trusts used to be fairly uncommon in Scotland but had become much more common in the last four or five years as lawyers had come to know about them.  He said that lawyers were alert to the fact that if they did not advise a client about a personal injury trust they were at risk of being held to be negligent.  The pursuer’s nephew Mr Carbray had dealt with his affairs while he was in the nursing home and had acquired and set up his house.  The pursuer was not mentally incapacitated, he was well able to communicate, his physical limitations did not prevent him from dealing with his affairs, he was able to pay his bills and not subject to undue influence.  The cost of a personal injury trust would be disproportionate to the likely size of an award and the simplicity of managing his affairs:  his main ongoing outlays were likely to be for care (which was paid for by variable direct debit) and the maintenance of his accommodation, which was in good condition and in respect of which he or his nephew could instruct and pay for any works required.  Much of the cost envisaged under this head consisted of professional fees for the managing of investments.  It was not competent to claim for investment advice or the cost of managing investments:  Page v Plymouth Hospitals NHS Trust [2004] 3 All ER 367 and Eagle v Chambers (No 2) [2004] 1 WLR 3081 per Waller LJ (with whom Buxton and Scott Baker LJJ agreed) at paragraphs 88-98.  The cost of taking advice so as to enable broader investment flowed from a decision about how to invest and not from the defenders’ negligence.  A pursuer could use his funds as he liked, but if he wished to increase the value of his award by investing more broadly he had to set off the fees charged by brokers against the gains made:  he was not entitled to recover those fees from the wrongdoer.  Accordingly, the cost of investment advice ought not to be recoverable from the defenders.  It would be inappropriate for the pursuer to recover from the defenders the cost of setting up and administering a personal injury trust. 

[17]      While I think that a personal injury trust would be beneficial to the pursuer, in the same way that it would be to many injured persons who receive a substantial award of damages, the question which I have to decide is whether it is necessary and the costs of it are recoverable from the defenders.  In my opinion a personal injury trust is not necessary in this case and the costs of it are not recoverable from the defenders.  The defender has full mental capacity and is able to manage his own affairs.  He has assistance from his nephew when required and is able to travel in his vehicle when driven by one of his carers.  Most expenses are paid by direct debit.  The requirements for recovering the cost of setting up and administering a personal injury trust are not met in the case of the pursuer for the reasons given in the submission for the defenders and I refuse this cost as a recoverable head of damages.   

Costs of case manager 

[18]      The pursuer seeks to recover the costs of a case manager. In her initial report 6/5 of process dated 31 July 2013, compiled at a time when the pursuer was still living in the nursing home, Miss Brake stated that in order for the pursuer to move out of the nursing home and into a home of his own he would require a case manager who would be responsible for all matters relating to co‑ordination and a support package.  She envisaged that the case manager would then have an ongoing role in terms of monitoring his future needs to ensure that he was as independent as possible and had a good quality of life, consisting of nine case management visits per annum and 12 hours as crisis contingency.  In her subsequent report 6/31 of process dated 4 May 2014 she “revisited” her recommendations in light of the purchase of the house by the pursuer and the establishment of a care package.  She estimated that the case manager would be required to visit the pursuer twice a year and that in between visits time should be allowed for regular telephone contact with the pursuer and administration time such as filling out benefit forms, liaising with the care agency, dealing with utilities, etc.  She estimated annual case management costs at £4,670.  Fen Parry, the pursuer’s existing case manager, spoke to her report 6/26 of process dated 25 March 2014.  In it she stated:  

“In relation to case management, I consider that my role going forwards is: 

• To continue to liaise with Mr Good and Mr Carbray
• To ensure the smooth running of the package
• To address with the H1 manager any concerns that may arise
• To ensure Mr Good has access to physiotherapy services as required
• To ensure Mr Good’s needs in terms of equipment are regularly reviewed, that he has access to recommended equipment and that relevant training is provided to staff
• To monitor Mr Good’s healthcare needs and ensure access to appropriate services
• To research social, leisure and holiday provision and ensure a wide range of options are available to Mr Good
• To consider future care with Mr Good and Mr Carbray and ensure provision of the best possible model for his needs.”

She broadly agreed with Miss Brake’s ongoing case management costs in her report of 31 July 2013, subject to the comment that costs for team meeting and support worker supervisions and re-recruitment were no longer relevant now that care was being provided by an agency.  

[19]      The submission for the defenders was that, while some input from Fen Parry was desirable and beneficial during the transition from Kirknowe Nursing Home to the house in Wishaw, there was no warrant for her continued employment and the cost of future case management should be disallowed.  Reliance was placed on the following passage from Kemp & Kemp, Vol 1, paragraph 13-004.3:  

“The claim for case management is often controversial. Costing between £50-£100 per hour with double rates at weekend and half-rate travel, the cost, always commercial, will be considerable. Case managers will usually have significant input to a claim at the early stages but will still require at least four visits a year one the regime is up and running to ensure smooth communication. The case management cost can easily be large.

So, what does a case manager actually do? The requirement will always be factually based and, in the most serious of cases, will always be needed and will only rarely be challenged. The case manager should provide interface between the claimant and the care providers. They will offer a range of services from an assessment and preparation of costings for a care package … to ongoing monitoring and review of support packages, family support, liaison with educational and vocational providers and sourcing private therapy provision and resources.

A good case manager in the right case can be an invaluable tool for the successful creation of a really beneficial care package. All too often, however, defendants perceive them as a ‘cost building’ element of a claim by the claimant’s team. But such perception has only rarely found favour with the judiciary.

As ever, the particular facts and good evidence are important. Even a relatively low-value claim may require case management input if the claimant is vulnerable or a protected party. However, in the lower-value cases a case manager is unlikely to be required, or may be required to set up a regime but, once that is done, can and should fade into the background.” 

The pursuer’s approach was formulaic and almost amounted to saying that if there was a care package there had to be a case manager.  Such an approach failed to examine the pursuer’s actual needs and appreciate the fact that he was not cognitively impaired and the amount that he could do for himself.  It failed to look at the nature of the care package, the fact that the pursuer’s circumstances were unlikely to change as his disability and accommodation were permanent and there was unlikely to be any fundamental change in his circumstances.  His position was very different from that of, for example, a brain‑damaged child.  With the advent of greater sophistication and complexity in the assessment of damages there had arisen an industry in quantifying claims by employing a somewhat formulaic approach which failed to assess the specific and particular needs of the injured person as opposed to what might benefit or be best for him.  Part of Miss Brake’s mantra in evidence was “promoting independence”, but her approach, instead of empowering the pursuer, wrapped him in cotton wool and rendered him virtually impotent.  In this respect the evidence of Helen Buri was founded upon.  

[20]      The evidence of Helen Buri was that a case manager was required for the arrangement of the pursuer’s accommodation and the setting up of his care regime.  It was not her opinion or experience that with this level of agency care and involvement and the purser’s position being static that he required ongoing clinical case management.  There was no need for monitoring in this case:  the agency fee covered monitoring, which could be dealt with by the agency care manager.  The pursuer had previously paid his own bills and there was nothing to suggest that he could not arrange his car insurance.  He could discuss ad hoc daily living tasks with his carer and ask his carer when he needed assistance with anything.  The carer could pay his bills, take the car for its MOT etc.  The appointment of a case manager would be pre‑emptive for someone who lacked insight into his needs, but this was not such a case.  A case manager was not required in every case where there was a care package:  there were complex cases in which there was no case manager.  It was very unlikely that there would be any dramatic change in the pursuer’s social activities over his lifetime, in contrast to, for example, a cerebral palsy case where there could be such changes requiring long‑term case management.  She thought the pursuer was quite capable of phoning the physiotherapist if he required a return visit.  Her opinion was that the case manager had been very useful in the transition phase but that the agency care manager would deal with issues in the future without the need for a clinical case manager as well.  Speaking from her experience as an occupational therapist and case manager she did not see the need for ongoing case management in this case.  

[21]      In my opinion the pursuer has failed to justify his claim for ongoing case management.  Miss Brake’s experience was with brain‑injured persons and I felt that her approach in evidence was very much coloured by her experience.  Fen Parry in her evidence was at times at a loss for words in seeking to explain what a case manager would do and under cross‑examination she struggled to justify the case for a case manager.  On this point I accept the evidence of Helen Buri and the submission for the defenders.  Ongoing case management is not required in the circumstances of this case and I disallow the claim.  It was accepted that the cost of past case management in the sum of £12,040 was recoverable from the defenders. It was submitted for the pursuer that, if the cost of future case management was not allowed, I should (as recommended by Helen Buri in the event that Mr Carbray did not wish to continue rendering assistance to the pursuer) add an additional two hours a week at £16.50 per hour to the cost of care, resulting in an addition of £1,716 per annum to the cost of future care.  This I do as I did not understand it to be disputed by the defenders. 

Decision
[22]      It will be for the parties to produce a schedule of damages in light of their agreement and the content of this opinion.  The case will call by order on a date to be afterwards fixed in order that any unresolved matters of detail can be dealt with and decree pronounced.