Willbye v Gibbons

This is a claimant’s appeal and a defendant’s cross-appeal against a decision of Ms Recorder Harman in a disposal hearing in relation to a personal injuries claim arising out of a road traffic accident. The judgment under appeal was given at Nottingham County Court on 22^nd April 2002, and there was a further hearing on 12^th June 2002 at which an order was made which is one of the matters challenged in the Respondent’s Notice. On that occasion the learned Recorder gave both parties permission to appeal.

The appellant was born 15^th May 1979, so she was 12½ years of age on 29^th November 1991 when, as a pedestrian, she was in collision with a car driven by the respondent. Liability was not admitted, and after an appeal to this court the driver was found to have been 25% to blame.

As a result of the accident the appellant sustained serious injuries to her head, her chest, her right arm and her left leg. Starting with the head, there was a serious brain injury, with deep contusions of the left cerebral hemisphere and damage to the frontal, temporal and parietal lobes. There were also extensive lacerations of the left ear and to the left side of the face. Her chest had to be intubated and ventilated. In the right arm there was a fracture of the ulna and damage to the left leg consisted of distal fractures of the left tibia and fibula. She was in a coma for three days, and initially she was in hospital until 5^th January 1992 (about 5 weeks). A brain scan in 1992 showed a lacuna in the right hemisphere. Initially she had plaster slabs on her right arm for 3½ weeks, and then she had a brace until 24^th January 1992 (i.e. for about 3 weeks after her discharge from hospital). Her left leg was treated by means of open reduction and in internal fixation of the tibia, but infection developed, and the leg remained in plaster throughout 1992. At the end of that year she was back in hospital for a short time for removal of the internal fixing device in her left ankle. She also had physiotherapy during that year, and was not back at school until after Easter 1992, having lost 1½ terms. The orthopaedic injuries have healed very well, with only a slightly increased risk of osteoarthritis in the left ankle at some time in the future and pain in that area if she is on her legs too long, but there is scarring of the left side of the face, the chest, the abdomen and the left ankle. The scars are illustrated on photographs which we have seen and which were before the trial judge, and the appellant is understandably distressed by the scarring, some of which might be ameliorated by plastic surgery, but I do have to say that apart from the ankle the scarring does not strike me as obvious. In addition to the scarring there is a small patch of hair loss which the appellant has to arrange her hair to conceal.

But the really troublesome aspect of this case is the sequelae of the head injury. In 1994 the appellant developed epilepsy. Since then she has had many episodes and despite medication the condition is not fully under control. Fortunately many of the attacks occur when she is in bed and do not even wake her, but she does also have attacks in the day time. When judgment was delivered in April 2002 her last day time fit had been before Christmas 2001. Night time seizures are still liable to occur as often as several times a week, although the doctors regarded them as less severe as they had been and at no stage so far as she either injured herself or been incontinent. One complaint noted by the Recorder was that the medication which the appellant has to take causes her to put on weight and that is an additional cause of some distress.

Other results of the head injury are mood swings with outbursts of anger, forgetfulness, lack of concentration, headaches (now a receding problem) and some speech impediment. The appellant is to some extent disorganised, vulnerable and dependant upon her partner with whom she lives and her mother, who lives nearby. She can use public transport on her own and does so to travel to and from work, and since leaving school she has continuously tried to work. She initially wanted to be a nursery nurse, which we understand had been an ambition since childhood, but had to cease training because of her epilepsy, and since then she has done mainly short term jobs, such as working in a shop or as a cleaner. Her cognitive abilities have been largely spared, but her personality has been affected, and the neurosurgeons disagree as to whether she is capable of managing her own affairs. She has been accepted as a patient by the Court of Protection and her solicitor acts as receiver. The Recorder found that because the appellant received such excellent support from her mother and her partner, Kez Harper, her disability is to some extent masked.

The appellant’s claim for damages was presented under three broad heads, namely –

(1)

Pain, suffering and loss of amenity:

(2)

Losses and expenditure to date, and –

(3)

Anticipated future losses and expenditure.

The second and third heads were itemised, and in this appeal we are concerned with the award under the first head, and with some of the itemised awards made in respect of heads 2 and 3.

Under this head the Recorder awarded £80,000 and Mr Matthias Kelly QC for the appellant submits that the award was too low. The Recorder was invited to consider three decisions reported in Kemp & Kemp on the Quantum of Damages, namely Cuddy C3-011, Mohammed C3-013 and Re Full C2-007. All were decisions of the Criminal Injuries Compensation Board, and we have considered them. She was also invited to consider the JSB Guidelines for the Assessment of General Damages in personal injury claims, 5^th Edition. Mr Kelly also invited our attention to those Guidelines and pointed out that whereas the bracket for established Grand Mal Epilepsy extends from £50,000 to £75,000, that for moderate brain damage where there is a significant risk of epilepsy extends from £75,000 to £110,000. Those figures have been slightly adjusted upwards in the recently published 6^th Edition of the Guidelines, but for present purposes nothing turns on that. His submission is that there was not only moderate brain damage, there were also other injuries, and there is established epilepsy so the award should have been in the region of £110,000, as he contended below. For the respondent Mr Alldis invited our attention to the appellant’s own description of her daily routine when she gave evidence, and emphasises that unlike some other epileptics she has not thus far hurt herself or been troubled with incontinence. She can work, travel by public transport, and go out socially with friends, so this award was, he submits, a reasonable one.

In my judgment the award was not generous, but it was within the range of awards open to the Recorder who did have the advantage of seeing the appellant, her partner and her parents. I remind myself that in Housecroft v Burnett [1986] 1 All E R 332 O’Connor LJ said at 337c –

“This court does not interfere with an award under this head unless it is manifestly too high or too low or it can be shown that the judge has erred in principle in relation to some element that goes to make up the award.”

To my mind this award was not manifestly too low, and no error in principle has been demonstrated, so I would not interfere.

There is no longer any dispute over the Recorder’s awards in respect of miscellaneous items of expenditure totalling £1605.27, or her award in respect of loss of earnings to date in the sum of £21,489.41, but there is a dispute in respect of the award for past care. The claim, as set out in the appellant’s schedule, was for the period from the date of the accident to the date of trial. More hours per week were claimed in respect of the earlier part of the period, but from January 1997 onwards the claim was for 21 hours per week at £5.33 per hour. Mr Alldis did not and does not dispute the structure of the claim as representing the number of hours during which the appellant has required and still requires support but, as he points out, this is not a case where nursing is required. What is required is for someone who can cope with the appellant’s moods to be at hand in case the appellant does have a seizure, and to be able to check that she has, for example, not gone off leaving the oven on, and that necessary support has thus far been provided by the appellant’s family and her partner. So Mr Alldis submits that it is not appropriate for them to be recompensed by means of a sum calculated by reference to a specified number of hours at a commercial rate. As O’Connor LJ said in Houscroft’s case at 343e this head of damages is to provide for the reasonable and proper care of the plaintiff or claimant, and the court has to consider in relation to an award –

“Whether on the facts of the case, it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate.”

In that case the mother was providing care and O’Connor LJ continued at 343g–

“The court is recognising that part of the reasonable and proper cost of providing for the plaintiff’s needs is to enable her to make a present, or series of presents, to her mother.”

Subsequent cases have followed that approach which was approved by the House of Lords in Hunt v Severs [1994] 2 AC 350, where Lord Bridge spoke at 363C of the underlying rationale of English Law being to enable the voluntary carer to receive proper recompense for his or her services. The difficulty of course is to decide what is proper recompense, and the commercial rate can be a useful starting point. So, in Nash v Southmead Health Authority [1993] PIQR Q156 Alliott J concluded that an award of two thirds of the Crossroads rate would enable the claimant to make reasonable recompense to his family. In Fairhurst v St Helen’s and Knowsley Health Authority [1995] PIQR Q1 Judge David Clarke QC awarded ¾ of the Crossroads rate because special skills had been required when caring for the plaintiff. In Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657 the trial judge adopted a similar approach, and in this court counsel for the defendant raised issues about tax, national insurance and travel and other costs which a professional carer would have to bear, which led the court to reject any precise method of approach. At paragraph 25 May LJ said –

“In my judgment this court should avoid putting first instance judges into too restrictive a strait-jacket, such as might happen if it was said that the means of assessing a proper recompense for services provided gratuitously by a family carer had to be assessed in a particular way or ways. Circumstances vary enormously and what is appropriate and just in one case may not be so in another. If a caring relative has given up remunerative employment to care for the claimant gratuitously, it might well be appropriate to assess the proper recompense for the services provided by reference to the carer’s lost earnings. If the carer has not given up gainful employment the task remains to assess proper recompense for the services provided. As O’Connor LJ said in Housecroft v Burnett, regard may be had to what it would cost to provide the services on the open market. But the services are not in fact not being bought in the open market, so that adjustments will probably need to be made. Since, however, any such adjustments are no more than an element in a single assessment it would not in my view be appropriate to bind first instance judges to a conventional formalised calculation. The assessment is of an amount as a whole.”

In Newman v Foulkes [2002] EWCA Civ 591 Ward LJ cited that passage, and continued “there is, therefore, no conventional discount”, but that does not mean, as I understood Mr Kelly to be contending, that in order to be able to provide proper recompense for the services that she has received this appellant must be awarded the rate claimed subject to perhaps some allowance for tax and national insurance. What the Recorder did was to take the figure claimed which, in total after adjustment was £51,918.62, and to discount it by 25% to yield the figure which she awarded for care to date, namely £38,939.96. In my judgment that was a perfectly permissible approach, which took relevant matters into account, and arrived at an acceptable conclusion.

There is no complaint about the Recorder’s award of £118,095.32 for future loss of earnings, calculated by reference to what the appellant could hope to have earned as a nursery nurse, less her average annual earnings over the last three years, nor is there any complaint about the award of £15,000 for handicap in the labour market, but the respondent asserts that the Recorder should not have awarded an extra £15,000 for loss of congenial employment. Mr Alldis tells us that so far as he has been able to ascertain the highest award to date under this head is £10,000, and in fact awards rarely exceed £5000. In my judgment it is important to keep this head of damages in proportion. The appellant is being compensated for being unable to pursue a career she thought she would have enjoyed. She never actually embarked on that career, although she probably had the ability to obtain the qualifications required, and in financial terms she has been fully reimbursed, so this is really an award for a particular disappointment, which may or may not be prolonged. In my judgment the award in this case should not exceed £5000, and I would substitute that sum for the sum awarded by the Recorder.

The Recorder responded to the appellant’s schedule of future losses which was placed in front of her by making separate awards under three heads, namely –

(1)

Care and assistance:

(2)

Additional care and assistance if the claimant has children, and –

(3)

Additional care and assistance if the claimant has to live alone.

As to the first of those heads the Recorder adopted a similar approach to that which she had adopted in relation to the claim for care to date. In the schedule care and assistance was claimed for 21 hours per week at £5.33 per hour for the rest of the appellant’s life. Applying the appropriate multiplier for the whole of life having regard to the appellant’s age (31.12) produced a claim for £181,129.60. The Recorder rejected a submission on behalf of the respondent that the multiplier should be reduced to allow for the fact that late in life the appellant might have required care even if no accident had occurred. That submission has not been made in this court, but Mr Alldis has contended that the Recorder was right to accept his second submission, namely that the hourly rate should be reduced to reflect the non-commercial source of the care. She reduced it to £4 per week, which yielded a total figure under this head of £136,932.16, and Mr Kelly submits that, for the reasons he advanced in relation to care to date, no reduction should have been made.

It seems to me that the situation in relation to future care is not the same as in relation to care to date. No doubt in the immediate future there will be little change. The appellant’s needs will continue as the present level and will be met by her partner and her mother, but, as the Recorder recognised, that situation could change. If the appellant has children, and the Recorder accepted that she would like to have more than one, her need for assistance would increase, at any rate for a few years, and might well exceed the capacity of her partner and her immediate family. If so she would then have to pay commercial rates for additional support, but at the moment it is impossible to know whether she ever will have children, if so when, and how many children there will be, so I cannot regard it as appropriate to make a separate award to allow for that contingency.

On behalf of the appellant a calculation was presented on the basis that the appellant would need a resident nanny at £35,076.50 per annum for the first five years of any child’s life, and on the basis that there might be two children 7½ years purchase was applied to produce a total of £263,073.75. That figure was then discounted to allow for the possibility of there being no children and further discounted to allow for the possibility of there being no children for 6 years. Thus the claim was reduced to £132,194.55 but, as the Recorder recognised, there was and is too much uncertainty to permit any claim based on a multiplier/multiplicand basis. The Recorder said that the resident nanny claim is “over the top” and not what the appellant would want bearing in mind her close family support, but, as the Recorder said, an award for some child care costs is reasonable. The Recorder then went on to make what she described as an “ informed guess” awarding £45,000 being about one third of what had been claimed. Mr Kelly submits that the Recorder’s figure was too low, and applied an unwarranted discount to an already discounted claim, based on the evidence of two care experts whose reports the Recorder had read and whose evidence was uncontroverted. Mr Alldis, on the other hand pointed out that, in part at least, the calculations proceeded upon the basis that the appellant had no partner, and he submitted that the Recorder’s award was too high.

On behalf of the appellant the Recorder was presented with a further set of calculations to allow for the possibility that at some time in the future the appellant might need further assistance because she would be living alone. It could happen if her partner were to leave her, and she can be very trying at times, or if he were to fall ill or die, and her family were unable to step in to fill the breech. It was postulated that for one quarter of her remaining life the appellant would require care for 28 hours a week, with associated expenses and cover for sickness and holidays, and that would justify a claim for £87,615.85. As to that the Recorder said that the claim was reasonable, but difficult to quantify, and she awarded £60,000, conceding that there was an element of speculation. On behalf of the appellant Mr Kelly makes no complaint about that award, but Mr Alldis submits that there were so many uncertainties that the figure was too high.

Another head of claim presented on behalf of the appellant related to holidays. It was submitted that because of her epilepsy and other problems the appellant would require a paid companion on holiday at £1000 per annum for the remainder of her life, producing a total claim under this head of £31,120.00. The Recorder rejected that claim, saying that the appellant’s close family relationships are such that she is likely to be accompanied on holiday if not by her partner then by a member of her family going as a fellow holiday maker, not as a paid companion. Mr Kelly points out that if her present relationship ends then, as the years go by, there may not always be a member of the family willing to accompany the appellant. That I can accept, but it seems to me to be simply a small facet of the appellant’s contingent need for care. The day to day care she now receives from her partner and her family she will need for the rest of her life. Everything else, whether it be a need for extra care because she is dealing with children or is living alone, or wants to go on holiday and has no one to go with her, is much more problematic, and all that can realistically be done is to increase to some extent the fund available to the appellant to satisfy her need for assistance in the future, recognising the possible ways in which demands may be made upon that fund, but not attempting to evaluate separate types of potential demand, because if potential demands are separately evaluated it may well turn out that there is duplication, or that substantial awards have been made in respect of contingencies which have never happened. I would therefore set aside the separate awards of £45,000 and £60,000, but take into account the need for extra assistance if the appellant has children, or if she finds herself living alone, or even wanting to go on holiday alone, when assessing her need for future care. To take account of those factors I would raise the award in respect of future care from £136,932.16 to the figure originally claimed of £181,129.60.

Julia Ho, one of the appellant’s experts, asserted that because of the appellant’s epilepsy she requires ground floor bungalow type accommodation, and a report of Anthony Jackson was produced to show that such accommodation, with appropriate adaptation and maintenance would cost £60,196.96. The Recorder rejected that claim, saying that she detected an element of double claiming, and that she had been reasonably generous over the care costs, which were in part to compensate the appellant for her difficulties in living independently. In my judgment a much more powerful reason for rejecting the accommodation claim is that relied upon by Mr Alldis, namely that it does not reflect what the appellant and her partner want to do. They plainly do not regard ground floor accommodation as essential because they have recently purchased a three bedroom semi-detached house in a convenient location, but there is force in Mr Kelly’s modified claim for the costs of adapting any property in which the appellant chooses to live to meet her needs. For example a shower may be safer than a bath, and rails may be required in strategic locations. Some award should be made to enable the appellant to pay for that type of adaptation not only now but if she moves at some time in the future. Comparatively speaking it is not a large item, but it would I believe justify an award of £10,000.

Taking into account the uncontested matters and the adjustments I consider to be necessary the result is that in my judgment on the basis of full liability the appellant should receive a figure somewhat in excess of £470,000, but she faces an additional item of expenditure, namely the costs of maintaining her relationship with the Court of Protection. There is no dispute as to the Court’s original charges, but if, as the appellant wishes, her solicitor continues to act as her receiver he will need to be paid £2848.75 per annum inclusive of VAT. That is recognised by every one to be a reasonable rate of remuneration, and on 12^th June 2002 the Recorder, having applied to that annual figure the multiplier of 31.12, awarded under this head £88,653.10. A person who has been rendered a patient as a result of the actions of a tortfeasor is entitled to require the tortfeasor to bear the costs of the receiver as part of the damages (see Cassel v Riverside Health Authority [1994] PIQR Q168) and, as part of the damages, they cannot escape a discount for contributory negligence. In this case that has an unfortunate effect because if the present arrangement with the Court of Protection persists the appellant will only receive by way of damages under this heading one quarter of the £88,000 which she will be spending on professional services, and the balance will have to be paid out of a relatively modest award of damages made under other heads. Mr Alldis therefore submits that in the appellant’s own interests, as well as in the interests of the respondent, the costs of receivership should be reduced, and in the award of damages those costs should be provided for on the basis that there will be a significant reduction. Mr Kelly points out that the appellant does not form relationships easily, her relationship with her mother can be difficult, and her partner would not be an appropriate receiver, so the present arrangement is the best that can be achieved in the circumstances, and if that is the way the appellant wants to use her damages neither the respondent nor the court has any right to stop her. Mr Kelly did not put it quite as bluntly, but that is what it amounts to, and in my judgment the proposition is correct. I would not therefore interfere with the judge’s award under this head, but I would urge the appellant and her advisers to think carefully about the present position. If the Chief Executive of the Public Guardianship Office were to agree to act as a receiver, and that would appear to me to be an entirely appropriate course, at present no receivership fees would be payable. Alternatively the bulk of the damages might be used to pay for the appellant’s accommodation, with appropriate safeguards in relation to the disposal of title, that could obviate the need for any one to manage funds. Any balance could perhaps be held in a deposit account with a bank or building society, with the appellant’s solicitor as a joint signatory, but these are only suggestions which could perhaps profitably be considered further with Assistant Master Prime at the Court of Protection who is now aware of this case. They do not affect the outcome of this appeal. To the extent that I have indicated I would allow the appeal, and the cross appeal.

I agree that the award should be varied to the extent and for the reasons set out in the judgment of Kennedy L.J.

On the question of future care, this is a compendious term that covers the various aspects of assistance that the appellant may need in the years ahead. Her future is full of uncertainties and the nature and extent of the assistance she will require depends on many factors, not least whether she continues to have a partner, whether and at what age she has children and if she does, how many. To split up the award into separate elements, as the judge did, is in my view to clothe the future with a greater degree of certainty than the circumstances warrant. There are likely to be periods in her life when, for one reason or another, she will need additional support but it is impossible to predict with any precision when these periods will occur or for how long they will last. An award under this head is very much a matter of feel with the judge keying in the various uncertainties about the appellant’s future life and using her experience as to the appropriate range for a global award. In my judgment, the additional help that the appellant will need if she has children and/or has to live alone are matters that ought to be taken into account, but in the award for care and assistance as a whole rather than as discrete heads of damage.

The issue of ongoing Court of Protection costs is a difficult one for the reasons outlined by Kennedy L.J. A claimant is not entitled to recover compensation for expense that will not be incurred, the most obvious example being where a claimant intends to have treatment under the National Health Service rather than pay for it privately. On the other hand the situation in the present case is that even though the appellant will only receive a quarter of a full award of damages it will still be necessary, to remunerate a receiver. Obviously it is uneconomic for a relatively small fund of damages to be diminished by significant spending on professional services, but in the absence of any evidence as to how else the appellant should proceed it seems to me that the amount awarded by the judge is recoverable.

The appellant's appeal being successful in part and the respondent's appeal being successful in part the appellant's damages be reduced by the sum of £14,950.64.

The appellant repay that sum to the respondent's solicitors on or before eight weeks' time, that is to say 14 May 2003.

The appellant do pay the costs of the respondent/defendant, such costs to be assessed failing agreement.

There be legal aid assessment of the appellant's costs in accordance with regulation 107 of the Civil Legal Aid (General) Regulations 1989.