Neutral Citation Number [2003]E.W.H.C.82(Q.B.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28th February 2003 (Handed Down)
Before :
THE HONOURABLE MR JUSTICE MORLAND
Between :
CRAIG MATTHEW CHARLES MARCHENT | Claimant |
- and - | |
ALLIED DOMECQ LEISURE LIMITED | Defendant |
Mr G. Martin Q.C. (instructed by Barcan Woodward) for the Claimant
Mr R. Walker Q.C. and Mr Stephen Archer (instructed by Weightman Vizards) for the Defendant
Hearing dates: 2nd-6th Dec 2002.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................
The Hon. Mr Justice Morland
Mr Justice Morland :
In the early hours of the 7th July 1996 the claimant, then aged 23, was ejected from a rough public house in Bristol. He was assaulted then by doormen employed by the 2nd defendants. He was probably hit on the head by the doormen with baseball bats. He fell down some steps but according to the ambulance record was not knocked out.
In this violent incident the claimant sustained a number of injuries. On admission to hospital at 1.45 a.m. he is described in the notes as ”alcohol +++”, but “alert”. He was not concussed and had no neurological deficits. He was found to have an eight centimetre jagged laceration to the right forehead, which has left a slightly lumpy scar entirely within the hairline, a large right occipital haematoma,, a fracture of the left carpus involving the triquetral bone and a fracture of the medial condyle of the left tibial plateau involving the knee joint.
On the 8th July 1996 he had surgery on his left knee. He left hospital on the 25th July 1996 in a wheel chair with a cast brace on his left knee, a left below elbow plaster and a removable plaster back slab on the right arm.
Particulars of Claim were issued on the 4th November 1999. On the 5th October 2000 judgment by consent was entered against the 3rd defendants, Allied Domecq, who agreed to accept 60% liability. My task is to assess damages.
On the 29th October 2002 the Official Solicitor was appointed to act as the Litigation Friend of the claimant without prejudice to the defendant’s contention that the claimant is not a “patient”.
The principal issues on damages are the nature, extent and consequences of the claimant’s head injuries, whether his behavioural problems have been exacerbated as a consequence of those head injuries, whether the claimant is a “patient” within the meaning of the Mental Health Act 1983, the extent of the loss or reduction of the claimant’s earning capacity and the amount of care that the claimant reasonably requires attributable to the permanent consequences of the injuries sustained on the 7th July 1996.
There are no major areas of disagreement in relation to the claimant’s orthopaedic injuries. In trial bundle I pages 181-255 are to be found the statements and reports of the orthopaedic consultants.
The most recent joint medical report is dated the 26th November 2002. I quote the conclusion in full:-
“1. The experts agree that Mr. Marchent was involved in an assault which occurred on the 6th July, 1996 and he sustained the following injuries:-
1. An undisplaced fracture of the right radius at the elbow joint.
2. An injury to his left hand and wrist with a fracture of the triquetral bone.
3. A minor head injury with a laceration of the scalp.
4. A depressed displaced fracture of the left medial tibial plateau affecting the knee joint.
2. The experts agree that Mr. Marchent received appropriate treatment and he recovered satisfactorily
3. The fracture of his left medial tibial plateau healed with slight mal-union leading to a residual varus overload of the left knee. One of the screws used to stabilise the fracture of the upper left tibia is now prominent.
4. Considering his orthopaedic injuries the fracture of the right elbow has united satisfactorily and he has full function of the right upper limb with no significant disability. The Experts agreed that there was no significant risk of him developing post traumatic arthritis and any increased risk he did have was small and likely to be less than 5%. The experts agree that he has only minor residual discomfort in the left hand and wrist.
5. The experts agree that Mr. Marchent is left with an underlying problem affecting his left knee in which he has some residual pain and weakness. This is due to mal-union of the fracture and there are early degenerative changes developing inside the joint. The experts agree that he, therefore, continues to have an underlying problem in his left knee, which is likely to deteriorate with the passage of time. The experts agree that Mr Marchent will require treatment to alleviate those symptoms and preserve the life of the knee joint. This should take the form of removal of the screws used to stabilise the fracture, which are now prominent and an arthroscopy of the knee joint in order to establish the extent of the underlying damage in all compartments of the knee. It is likely, on balance of probabilities, that he will need a surgical reconstructive procedure in the form of a tibial osteotomy to correct the alignment of the knee joint and reduce the strains on the medial compartment of the knee. The experts agree that the approximate cost of this treatment will be in the region of £8500.00 The experts agree that an upper tibial osteotomy with an opening wedge would be appropriate to reduce the stress on the medial compartment of the knee joint and the development of post traumatic arthritis in the knee. The experts agree that Mr. Marchent is likely to need to undergo this procedure within three to five years.
6. The experts feel that despite corrective surgery, there is a high chance, in excess of 50% that he will eventually develop significant osteoarthritis of the medial compartment of the knee, which will require a uni-compartmental arthroplasty. The total package of such treatment on a private basis is likely to reach £10,000.00 at current rates. The experts feel that surgery would not be undertaken for at least 15 to 20 years from the date of this report.
7. The experts agree that during the recovery phase, following his injury, he was advised to fully weight bear on the left leg by the 30th October, 1996 and that this was appropriate. We also agree that he would have needed three to four months at most of care before his injuries would have healed sufficiently for him to be able to look after himself.
8. The experts agree that Mr. Marchent could not have returned to his pre-accident employment of painter and decorator or, indeed, any form of heavy labouring.
9. The experts agree, however, that Mr. Marchent is capable of undertaking lighter work which does not involve excessive bending, lifting, carrying or prolonged walking and standing and is subject his intellectual capacity and cognitive function. The experts agree however, that he would be capable of undertaking all the above to a moderate degree. The experts agree that on the basis of the evidence available, and on the balance of probabilities, there is no physical reason why Mr Marchent should not have continued his work as a painter and decorator but for the accident as it occurred on the 6th/7th July 1996. The experts agreed that Mr, Marchent was likely to have been able to work until the age of 50 in this capacity.
10. Complicating the problem of his left knee is the fact that Mr Marchent is heavily overweight and has a body mass index of 45. This will have the effect of generally restricting his mobility but also increase his susceptibility to osteoarthitis of the weight bearing joints and, in Mr Marchent’s case, increase the risk considerably of further damage occurring to the left knee and reduce the chance of success following either a surgical reconstructive procedure in the form of an osteotomy or eventually a uni-compartmental joint replacement. The experts agree that, in general, his life expectancy will be reduced as a result of his gross obesity and he will be at risk from developing arthritis, hypertension and its complications of stroke, coronary artery disease and heart failure. In addition he will have an increased risk of deep venous thrombosis and pulmonary embolism and his carbohydrate tolerance will be impaired which may lead to frank type diabetes. The experts agree that this degree of obesity will adversely affect his mortality rate and consider that his would be 300%-400% leading to a reduction in his life expectancy of between 10 and 15 years. ”
Not dealt with in this joint report is the claimant’s ability to walk distances. Having considered the orthopaedic reports as a whole and the claimant’s somewhat unsatisfactory evidence on the topic my conclusions is that the claimant’s ability to walk any distance will vary from day to day and will depend also upon the surface on which he walks. I consider that on a good day he is able to walk about half a mile without significant pain or discomfort but on bad day a quarter of mile will be his maximum.
If I were assessing the totality of the orthopaedic injuries in isolation, my assessment would be £35,000. this sum takes into account the future surgical procedures, the osteotomy and the arthroplasty. I have also taken into account that the claimant lacks the intellectual resources upon which to fall back and mitigate his physical disabilities.
I additionally allow the sum of £12,500 for future surgical fees etc discounting substantially for acceleration from the figures in the joint report. I do not accept the defendants’ submission that no award should be made because if the claimant requires surgery, the same is elective and he will be treated at no cost by the NHS as he always has been. The structure of the provision of health care is changing. I see no reason why the victim of a tort should not be able to choose when and by whom surgery is carried out as a private patient at the tortfeasor’s expense rather than at the general public’s expense.
Before considering whether the claimant has established on the balance of probabilities that he sustained any significant long-term brain injury consequent upon the head injuries sustained on the 7th July 1996 it is necessary to set out in some detail the history of his earlier life and behaviour.
The claimant had a very unhappy childhood. When he was aged one, his father was sent to prison for nine years for manslaughter. His mother subsequently remarried. His stepfather was an alcoholic, abusive and violent. His mother was sent to prison for twelve months for a motoring offence. She was also convicted of substantial D.S.S. frauds.
Not surprisingly the claimant as an adolescent mixed with a bad crowd. He had the additional misfortune of being dyslexic. He had a low average IQ of about 85. He was expelled from junior school and sent to a special school. From the age of about 16 his maternal grandmother and step grandfather became effectively his parents. He lived with them. His mother lived down the same road but he has never got on with her.
The claimant’s criminal convictions are set out on pages 320 to 328 of trial bundle I. He had two appearances in the Bristol Crown Court. When 16 years of age he was convicted of unlawful wounding when he was sentenced to twenty hours at an attendance centre. Using a knife he wounded a boy in the neck. A year later he was convicted of causing grievous bodily harm with intent and sentenced to 21 months detention in a Young Offender Institution. He stamped on a man’s head causing his victim brain damage. Additionally he has many convictions for driving while disqualified, driving with excess alcohol and aggravated vehicle taking. He told me that he often went “ram-raiding” shops when he needed the money. Dr Eames described “ram raiding” as being then a “cottage industry” in Bristol. He had convictions for criminal damage in his mother’s home in 1990 and in his grandparents’ home in May 1996. He had been released from prison in December 1994 after being sentenced to 12 months imprisonment for aggravated vehicle taking. Since the incident of the 7th July 1996 his criminal offending has been of a lesser order. In July 1997 he was fined for using threatening behaviour and again in August 1997 when he was also convicted of common assault. After that his only conviction has been for using a false cover note in March 2000.
His medical records reveal that the claimant was the victim of a number of assaults and accidents. I quote:-
“3.6.86 Recently assaulted at school resulting fracture nose.”
“7,9.88 Attacked by 5 men and hit about face O/E. Bruising and swelling to left forehead and upper eyelid”
“9.6.89 On motorcycle hit car – various bruising and grazes”
“15.6.92 Assault this weekend.”
26.7.92 Was drunk 3 days ago tripped and fell. Hit back head & knocked out! Small bumps & bruising. C/O headache”.
“30.9.93 bruising around right eye with graze over right cheek bone. Alleged kicked by policeman night before last.
(and much more recently)
“9.7.01 Claims assault. Sprayed in face with C/S gas. Struck over head with snooker cue and says knocked out twice but for less than one minute”
On the 3rd November 1993 the claimant went with his mother to the mental health unit at Southmead Hospital and saw Dr Johnson, a registrar in psychiatry who wrote a referral letter. I quote:-
“This gentleman presented to Casualty with cuts to his hands and expressing distress and guilt having been disruptive and having smashed furniture at his grandparents home where he had been staying. He told me that he did not know why he had become aggressive that day although admitted to feeling very frustrated following the break-up of a relationship with his current girl friend. It is reported by his mother who attended with him that Craig regularly will fly into a rage without precipitant, has poor recollection of the events and feels remorse and guilt afterwards. No clear seizure activity has been observed and these problems stretch back to his childhood. This gentleman drinks alcohol one a week at which time he will have 6 bottles of strong lager and three pints of strong cider. He was not inebriated when I saw him in Casualty. He has something of a past forensic history.”
The importance of this letter is that it shows that the claimant has some insight into his problems and wanted help.
He was seen by Dr Arnold a consultant psychiatrist on the 14th December 1993 who noted the claimant’s appalling work record. I quote:-
“Got a YT course as a brick layer. Got sacked for wacking a kid round the head with a ruler and swearing at employer in refusing to do something”
Got job partitioner. Got sacked for non-attendance”.
“Then got job as trainee bodger. Arguing with boss.”
“Then deck layer (floor reinforcement) temporary sacked for messing about”
“Graphic Engineer B.Ae. Sacked for skiving off”.
“Warehouseman. Got put in prison for G.B.H. with intent.”
Max 3 months in a job”
Dr Arnold wrote to the claimant’s G.P. saying:-
“He said that he now ram raids when he is forced to because he is only on unemployment benefit and cannot afford the social life that he wants on this. He does not feel responsible for this because he feels that he is forced to do it by his circumstances. He said that he only goes ram raiding because he has never learnt to burgle
He is presently living with his grandparents and he has frequent arguments, some after alcohol, but many not. At times throughout his life when he has been very angry he has lost control altogether and does not remember much of what he did. I do not think that this represents episodic discontrol since it clearly fits into a pattern within his life and it is not uncommon for people who become “beside themselves with rage” not to remember what happened. I could find no evidence of any psychiatric illness. He was not depressed and there was no evidence of psychosis. He was matter of fact and wanted “to change it all” by which he wanted a job and to be able to control his temper. However he did not want to stop ram raiding unless he had a job and was getting sufficient money for his social life. I felt that under these circumstances it was not possible for me to offer him a therapeutic relationship because he was not committed to ending his anti-social attitudes and therefore was unlikely to get control over his temper and his violence”
The case for the claimant was that despite his long history of criminal and violent behaviour after his release from prison in December 1994 there has been a marked improvement in his behaviour and by the summer of 1996 he was at last enjoying work and a loving relationship with a girl with a prospect of marriage. Then the trauma of the 7th July 1996 occurred bringing improvement in his life to an end and exacerbating his old behavioural problems. The claimant’s case is based on the examinations of Dr Eames, a consultant neuropsychiatrist who has specialised in brain injuries and their rehabilitation and of Dr Walton, a consultant neuropsychologist, who are both of the opinion that the claimant suffered significant injury to the frontal lobes of his brain in the incident of the 7th July 1996 causing a permanent deterioration in his condition and behaviour.
The defendants relied upon the evidence of Dr Dedman a general psychiatrist with no particular experience in head injuries cases. He did not accept the opinions of Dr Eames or Dr Walton nor did he consider that the claimant should be classified as a “patient” under the Mental Health Act 1983.
The areas of agreement and disagreement between Dr Eames and Dr Dedman are set out in joint statements.
The first dated the 3oth November 2001 records:-
“1.Situation before the index incident.
We are AGREED that Mr Marchent had a well established anti-social personality disorder, that he appears to have had several head injuries sustained in previous assaults and that he was given to episodes of heavy drinking during which violent incidents would occur. We DISAGREE with regard to the severity of the previous head injuries. Dr Eames considers that none of those documented in the medical records was more than trivial. Dr Dedman considers them to be potentially significant and points to the history of a fractured nose and loss of consciousness.
We AGREE that he had multiple specific learning difficulties.
Dr Eames considers that he was a hyperkinetic child and that his behavioural difficulties may be explained more by an episodic dyscontrol syndrome than by the personality disorder, which he does not believe was particularly severe. In addition he considers that, on the evidence given by his mother, and in the statements he has seen by both mother and step-grandfather, Mr Marchent was showing signs of stabilization during the months prior to the incident and that it was unlikely that he would continue to behave in as anti-social a manner as before.
Dr Dedman recognizes the significant number of pre-existing problems that were evident during childhood and prior to the index incident and which he considers to be explainable in terms of a conduct disorder, which developed into an anti-social personality disorder as he grew up. He does not agree from the information available to him, that there was any evidence stabilization of the personality disorder having occurred in the months leading up to the incident.
2. The Incident
We are AGREED that it is likely that Mr Marchent suffered a significant blow to the back of the head which could have been responsible for some frontal lobe damage. Dr Eames considers that Mr Marchent’s poor time sense is indicative of such damage although concedes that it can rarely be developmental feature (i.e. pre-existing). Dr Dedman considers that frontal lobe damage is unlikely due to there being no loss of consciousness following the blow or post-traumatic amnesia, both established markers of severity in head injury. He concedes however that in some cases frontal lobe damage can occur in the absence of these markers. Dr Eames considers, in the light of frequent experiences in a Head Injury Follow-up Clinic, that significant frontal lobe injury is often not associated with disturbance of consciousness or with amnesia.
3. Consequences.
We AGREE that the injury to Mr Marchent’s knee which would appear to have ongoing consequences, has caused some negative influence on his psychological functioning. We agree that this does not amount to a fully-fledged affective disorder and does not alter his employment chances in its own right.
Dr Dedman considers this to be an adjustment disorder of mild to moderate severity, which may be helped if Mr Marchent were able and willing to take anti-depressant medication.
Dr Eames considers that the incident has caused a worsening of Mr Marchent’s pre-existing anti-social personality disorder, he does not believe that antidepressant treatment would have any significant effect on the outcome.”
The second dated the 25th November 2002 related to whether or not the claimant should be classified as a “patient” under the Mental Health Act 1983 and records:-
“We hold DIFFERENT VIEWS on the issue.
In light of Dr Dedman’s comments in his report of 19.11.2002, Dr Eames points out that the question of competence in the management of one’s affairs is not determined in any way by the individual’s intelligence as measured by IQ tests, since what is relevant is his (or her) ability to deploy, or use, intelligence. In other words, it is determined mainly by the person’s Executive Skills. In Mr Marchent’s case, Dr Eames assessed these first on the basis of descriptions of his day-to-day management given by relatives, coupled with his own descriptions that were grossly at odds with theirs. He further points out that it is universally recognised by clinicians (including neuropsychologists) working in the field of acquired brain injury that Executive Skills cannot be reliably measured by formal “laboratory” tests, of which the most that can be said is whether or not they provide collateral support for conclusions drawn on the basis of descriptions of the person’s “real life” performances.
A second feature that typically undermines a person’ safe and sensible conduct of affairs is impulsivity: in Mr Marchent’s case, again, this feature is demonstrated in the witness statements.
When he reassessed Mr Marchent in November 2001 for the specific purpose of considering his competence, he noted that he reported that he had begun to realise that he was not really able to plan or organise his life adequately or to make and keep to rational decisions, and that he would need help, so that he said he would welcome the help of the Court of Protection. Dr Eames nevertheless considered that it would be proper to await the results of neuropsychological assessment before reaching a final conclusion on the question of competence. These were made available to him in May 2002 (Dr Walton’s report) and in his view supported the clinical conclusion.
Further, he points out that in his original report in July 2001 he noted that it was already five years since Mr Marchent’s injury, so that no significant improvement in his cognitive and executive functions could be expected. (Dr Walton made the same point in his report.) It was therefore entirely reasonable to complete the CP3 ten months later.
Dr Dedman states that on clinical assessment he did not think that Mr Marchent presented as a person incapable of managing his own affairs. His subsequent examination of the witness statements of family and friends do not cause him to alter this view.
He, is aware of Dr Walton’s findings and agrees there is some deficiency of executive function, but does not think it is of sufficient severity to consider him unable to manage his affairs. He agrees with Dr Eames’s statement that executive function cannot be reliably measured by objective formal “laboratory” tests but also points out the subjectivity of witness statements from family and friends who may have an interest in the outcome of a claim.”
A number of witnesses gave evidence about the Claimant’s behaviour before and after the 7th July 1996. I have substantial reservations about the reliability of the evidence of the claimant himself, his mother and his step-grandfather.
The claimant himself, as I find, was unwilling deliberately to answer many questions feigning that he could not remember. Although in a happy relationship with Wendy Taylor, he said that on the 7th July 1996 after being ejected by the bouncers from the public house he wanted to get back in because he had done nothing wrong. He said “I don’t think I was very drunk”. This incident is typical of the pattern of the claimant’s lifelong behaviour, a propensity to becoming involved in violent scrapes.
The claimant asserted that when he came out of prison in December 1994 he decided to reform and obtained various labouring jobs through employment agencies. No employer was called to substantiate this. However there is a revealing paragraph in his written statement.
“In about Autumn 1995 I got a job through an agency with T Davis Builders. Initially my job was to rub down metal windows, but then I moved onto painting and worked on a couple of different sites. I think that I was earning about £150 - £200 per week take home. However, when the painting and decorating work dried up, Mr Davis wanted to drop my wages back down to labouring and I left because I wanted to do painting and decorating.”
Nevertheless all the evidence is that he was enjoying his last job as a painter and decorator with Mr Marsden, who visited him in hospital and was prepared to give him a reference. Mr Marsden wrote on the 5th January 1997:-
“..when I took you on it was on an indeterminate short term basis because I was so busy during the summer. Had you not been injured it is probable that I would have had to lay you off towards the end of October….
…Please accept my good wishes for your recovery and if you should ever need a reference please do not hesitate to give my name.”
It should be noted that the claimant only worked for six weeks with Mr Marsden and his maximum net pay was £85.83p a week.
In my judgment although theoretically the claimant from an orthopaedic point of view could do a job as a warehouseman having regard to his low IQ and some additional mental disabilities caused by frontal lobe damage the claimant is now realistically unemployable.
In my judgment the injuries sustained on the 7th July 1996 have caused the claimant a loss of earnings In my judgment if those injuries in particular the left knee injury and to a much lesser degree the head injury had not occurred the probabilities are that the claimant would have worked spasmodically at low paid work including painting and decorating. It is very much a matter of guesswork as to how many weeks he would have worked and at what wage.
In my judgment a fair and reasonable assessment would be on this basis:-
“30 weeks a year at £100 net per week since July 1996 to date = 30 weeks x 5½ years x £100 = £16,500.
30 weeks a year at £120 net from today and continuing taking into account the claimant’s obesity I shall allow a 17-year multiplier.
= 30 weeks x 17 years x £120 = £61,200.”
I do not consider that the agreed theoretical multiplier of 20.88 years sufficiently discounts for the contingencies in the case of this claimant.
The claimant’s mother was a wholly unsatisfactory witness and I discount her evidence completely.
Mr Arthur Cooper, his step-grandfather, is clearly a very good man if far too indulgent to the claimant who owes him upwards of £10,000. Mr Cooper is now aged over 80 and has a sick wife, who has had three strokes, to look after. Before July 1996 he had provide considerable care services to the claimant such as cooking meals and chauffeuring him to and from public houses. The claimant repeatedly scrounged money off him. I suspect that frequently Mr Cooper gave in to the bullying to keep the peace. After July 1996 the claimant’s selfish behaviour to Mr Cooper, as I find, worsened. The second incident of smashing up his grandfather’s house which led to his ejection and from October 1997 living on his own in a flat, was typical of the earlier smashing-up incident. In the natural order of events the claimant’s reliance on the services of Mr Cooper would have come to an end about now although I do find that Mr Cooper has rendered additional care services to the claimant attributable to his overall injuries which reasonably justify compensation.
Wendy Taylor was a most impressive witness. She was 17 and studying for A levels when she met the claimant in the summer of 1995. She completed her A levels the following year and left school. Although her father wanted her to go to university she decided to work full time on a varying shift basis at the Swallow Hotel where she had worked part-time for her last year or so at school.
Wendy Taylor said that before their relationship began she didn’t know much about him as she had never mixed with his friends but a friend of hers had told her that the claimant has been in prison as she understood for fighting.
She said that she had “really really loved him” and was “almost obsessed with him”. She did not ever live with him but she would stay overnight when his grandparents were away. They became engaged and went to estate agents with a view to buying a house. When this was, was not clear but in my judgment it was probably after July 1996.
She did not tell her parents with whom she was living that the claimant had been in prison or that he had no regular work record. I consider that it is very improbable whether or not they had married that their relationship would have still been in existence to day if the incident of the 7th July 1996 had not occurred. They had very different family backgrounds and intellectual talents.
Wendy Taylor has had no contact at all with the claimant since before October 1998. She is now working for an insurance company as a team leader and has been living with her partner for over 3 years and they are buying a house on mortgage.
Before July 1996 the claimant was in and out of work. He could not settle into a job he enjoyed but when he got into painting and decorating he seemed very happy. She never saw him violent or abusive.
But after the 7th July 1996 there was a big change. In hospital he swore at the nurses and at her. In hospital she showered him and assisted in his care. This continued when he returned home to his grandparents. He ceased to show her affection. He shouted and swore at his grandmother. He was not only demanding money from Mr Cooper but from her; as she put it “he’d take me to a cash point”. Sometime after he was ejected from his grandparents in October 1997 and went to live on his own in the flat, they drifted apart. “He wouldn’t listen. Every sentence had swear words”. A revealing comment by her was that before July 1996 “he expected household chores to be done by women but I was able to talk him into doing somethings”.
Compensation is certainly payable for the considerable care rendered to the claimant by Wendy Taylor in the year from 7th July 1996.
Equally impressive both as witnesses and achievers were his male friends from the neighbourhood. All speak of the good influence of Wendy Taylor, his apparent enthusiasm for painting and decorating and the general improvement in his morale in the months before the 7th July 1996 and his deterioration thereafter. A surprising and commendable feature of the claimant’s male friends has been the way that they have stuck with him in good times and bad, visiting him in prison, and helping him since his physical disablement. This suggests that they recognise that he is to an extent the victim of misfortune and when not in a rage pleasant company. This I can accept having observed him for a considerable time in the witness box.
Lee Phillips who is aged 32 lived with his parents next door to the claimant’s grandparents from 1987 until 1995. He has been employed by the same company for the past 14 years and is a warehouse supervisor. He is married with three children but he still sees the claimant about 4 times a month.
He visited the claimant when he was in prison and on the last occasion that the claimant was in prison the claimant said to him that he wanted to finish with crime and lead a normal life. He had been aware that the claimant had been involved in ram raiding. When the claimant came out of prison he broke away from the bad crowd. He was looking for full time work and formed the relationship with Wendy Taylor, as he put it, “quiet, sensible. right for Craig”. Lee Phillips said that it was the only relationship that he had known him have. He seemed to have a goal in life. Craig was starting to grow up. He had passed his driving test in January 1996 at the first attempt.
Since the incident of the 7th July 1996 Lee Phillips has noticed a change in the claimant. His reactions are a lot slower and he tends to flare-up.
The Dore brothers gave similar evidence. Both young men making their way in the world steadily after serving long apprenticeships. Anthony Dore said that the claimant had changed quite a lot when he came out of prison. He had a lot more self-respect. Wendy Taylor was good influence. He was really in love with her. She was his first steady girl friend. After the 7th July 1996 incident he treated her like a skivvy. He was a lot quieter than he used to be but can fly off the handle. He has lost confidence. He is not good at adding up a break at snooker. Shannen Dore said that the claimant now only wants to go to local pubs and is moody and grumpy.
However, the deterioration in the claimant should not be exaggerated. He not only can drive a car but in June 2002 he won a gold medal clay pigeon shooting from the back of a boat. Anthony Dore, whose father shoots for England, only managed a bronze medal. The claimant also beats Anthony Dore at snooker. Both these pastimes require a high degree of hand and eye coordination. With snooker judgment of line, pace and angles is required. With clay pigeon shooting accuracy of aim and speed of reaction are required.
Nevertheless I accept the evidence that since the July 1996 incident there has been a deterioration in the claimant’s performance and behaviour although he was able from about October 1997 for about 4 years to manage a quasi-independent life alone in a flat. It was quasi-independent in the sense that he continued to benefit from the same sort of care that he always had when living with his grandparents. His step-grandfather, indulgent as always, provided him with meals, arranged for his laundry and acted as his chauffeur, particularly driving him to public-houses and collecting him after an evening’s drinking.
I found Doctor Eames and Doctor Walton objective and convincing witnesses and I prefer their evidence to that of Dr Dedman.
In his report of the 12 July 2001 Doctor Eames said this of his examination of the claimant:-
“In mental state, he came across (somewhat to my surprise, having read his history in his medical records) as a man of quick, bright intelligence. He clearly understood his whole situation, including the niceties of his litigation. Despite the fact that he had clearly had a significant head injury the night before, he was able to give a good account of recent events. Although he complained of constant depression of mood, he showed a normal range of affective responses and offered some humour at times, there was certainly no objective evidence of any enduring affective disorder. The only marked abnormality in the mental state was his insistence that he had no problems apart from his knee, and that temper and aggression were not problems he ever noticed in himself.”
He concluded:-
“In my opinion, Mr Craig Marchent had a very significant behaviour disorder from children, but there was evidence of the beginnings of moderation, and the establishment of a more reasonable way of life, in the six months or so before his injury at the age of 23. The effects of the assault included significant injury to the frontal lobes of the brain, which has left him (to some extent because of pre-existing vulnerability, but nevertheless unlikely to have been present without the injury) with a “frontal lobe psychopathic disorder”. This means that he is very unlikely to change in the future, in terms of his behavioural characteristics, which include an almost complete absence of the ability to recognise as “alien” those behaviours that most disturb other people, particularly those close to him. At the moment his only real social and domestic support comes from his grandparents, but his grandmother is disabled herself, by a stroke, and his step-grandfather is seventy-nine years old, so that this whole system of support is unlikely to last very much longer. Once it is no longer available, he will certainly need some alternative form of support, which will be difficult to deliver, and therefore should be under the control of an experienced Brain Injury Case Manager.”
It was not until the 1st September 2002 that Doctor Eames signed the certificate giving his opinion that the claimant was incapable by reason of mental disorder of managing and administering his property and affairs. In the certificate he wrote:-
“My opinion is based on the following diagnosis and the following evidence of incapacity:
“As a result of severe traumatic brain injury, he has permanent deficits affecting cognition (concentration and memory), executive skills, and behavioural control (including marked impulsivity). He has never mastered domestic skills or financial management and his ability to learn new skills is now very poor.”
When signing the certificate Dr Eames had last examined the claimant on the 9th November 2001 but meanwhile the claimant had been assessed by Dr Walton whose report is dated the 14th February 2002 and whose assessment confirmed Dr Eames’s conclusions. Dr Walton in his report wrote:-
“…his neuropsychological performances are consistent with injury to the frontal lobes of the brain. For example he experienced profound difficulty with selective attention and response inhibition on the Stroop Test. He produced more perseverative responses than is normal on the Design Fluency Test and this pattern of performance is associated with frontal lobe injury. He showed planning and organisational difficulties on the Complex Figure of Rey Test and on the Design Fluency Test. On the Brixton Spatial Anticipation Test he made poor judgements in attempting to predict changes when there was no basis on which to do so, a pattern of performance that has again been linked strongly with frontal lobe damage. In addition, he performed relatively well on verbally mediated tasks (verbal fluency, Verbal IQ, verbal memory) which are the tasks that are typically performed poorly by individuals with antisocial personality disorder and conduct disorders. The frontal type problems described above have not been consistently found in this group. There are also the complaints of difficulties with temporal memories and the apparent lack of insight into his current problems which are also features of frontal lobe damage. His neuropsychological profile is then more consistent with the effects of frontal brain injury than with antisocial personality disorder.”
In his oral evidence Dr Walton who was a jointly instructed independent expert gave the opinion that the claimant’s evidence about his disabilities was genuine and that he did his best in the psychological tests. He said that he performed will in the majority of tests and had a sense of achievement of having done well. The claimant was not exaggerating his disabilities.
In my judgment accepting as I do the evidence of Dr Eames and Dr Walton in the light of the evidence as a whole it has been established that the claimant sustained on the 7th July 1996 a degree of frontal lobe damage which has resulted in a permanent deterioration in his behaviour and his ability to enjoy an independent existence.
C.P.R.21.1 (2)(b) reads:-
“patient” “means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his own affairs”
The meaning and effect of these words were considered in depth by Wright J. in Masterman-Lister v. Brutton & Co. [2002] E.W.C.A. 417 Q.B. page 7-23 and by the Court of Appeal which upheld Wright J. [2002] E.W.C.A. CIV 1884. The following principles can be extracted:-
“1. “Affairs” means only business matters, legal transactions and other dealings of a similar kind.
2. It is for the Court to decide whether or not a person has capacity, not the medical profession.
3. In reaching its decision the Court should have regard to all the evidence of which the medical evidence is an important element.
4. A person is presumed to be capable of managing his affairs until the contrary is proved.
5. Legal understanding depends on understanding rather than wisdom, the quality of the decision is irrelevant as long as the person understands what he is deciding. Many people of normal capacity make improvident and unwise decisions in business matters.
6. It is relevant to consider the nature and extent of the property and affairs that he has to administer in the context of all the circumstances and state in which he lives.
7. To have the requisite capacity the person must have the insight and understanding to realise that he needs professional advice and sufficient mental capacity to understand and take decisions on that advice.”
Wright J. reached this conclusion.
“The purpose of the Court’s jurisdiction to declare a person to be a patient, with the consequent involvement of the Court of Protection, is not to protect the individual from the consequences of a wrong or imprudent decision; it is to take out of the hands of that individual his or her decision-making function in relation to property and affairs, when it is shown on the balance of probabilities that such person does not have the capacity sufficiently to understand, absorb and retain information (including advice) relevant to the matters in question sufficiently to enable him or her to make decisions based upon such information. The Court is not concerned with the question whether such decisions, when made, are wise or unwise, or on good advice or bad.”
In my judgment applying the above principles and considering all the evidence the claimant before he sustained his injuries on the 7th July 1996 only just had sufficient capacity to manage his affairs. The effect of the frontal lobe damage has been to render him incapable of so doing. I do not accept the contentions that either the claimant may cease to be a patient at some indefinite date in the future or he might in any event have become a patient.
The claimant will be entitled to Court of Protection and Receivership costs which I hope can be agreed between the parties.
Dr Dedman, whose conclusions I do not accept, did not think that the claimant was incapable of managing his affairs. He could see no clear evidence of frontal lobe damage. There was no evidence of concussion. He didn’t think that the blows sustained by the claimant on the 7th July 1996 were sufficient to cause brain damage. In his evidence he said that he had no criticism at all of Dr Walton’s procedure. He accepted that he was not a specialist in head injury patients and had only limited experience of the rehabilitation of head injury patients. He agreed that certifying the claimant as a patient could be a reasonable and valid conclusion.
Before the 7th July 1996 the claimant with his overall IQ of 85 and his behavioural problems he was marginally employable and marginally able to look after himself and manage his affairs. In my judgment the effect of the damage to the frontal lobe of his brain has been to render him incapable of managing his affairs.
The Cost of Care.
I heard evidence from two care experts Mr Holloway, called by the claimant, and Mrs Fowler called by the defendant. Mr Holloway had the advantage over Mrs Fowler of being a brain injury case manager. Moreover Mrs Fowler’s conclusions were based on there being no brain damage to the claimant. Although I consider that to a degree Mr Holloway underestimated the amount of support and care that the claimant was receiving from his family before the 7th July 1996, in general I accept his approach which is set out in his detailed and impressive report dated the 1st August 2002.
It was not until May 2002 that a case manager was engaged and that was at the instigation of his Solicitors. Therefore I must approach with caution the question whether a case manager is reasonably required. Yet it should be noted that Dr Eames in his report of the 12th July 2001 suggested the need for a case manager when the claimant’s grandparents became no longer available.
In my judgment having regard to the extent of the claimant’s overall disabilities the reasonable need for a case manager and support worker is established. It should be noted that the care regime now in place has already had a beneficial effect on the claimant’s manner of living
I accept that because of the claimant’s behavioural problems and impulsive and abusive tendencies particular skill will be required of both case manager and support worker.
I shall now summarise my conclusions under the various heads of damage.
General Damages.
Pain suffering and loss of amenity (including both orthopaedic and psychiatric injuries) - £55,000
Loss of Marriage or long-term relationship prospects - Nil -
Special Damages.
Net Loss of Earnings - £16,500.
I shall leave the parties to agree the appropriate deductions for receipt of income support, housing benefit and mobility allowances.
Care.
(a) By about November 1996 from a physical point of view the claimant should have been able substantially to look after himself but superimposed upon his undoubted residual physical disability arising from the injury to his left knee are the behavioural problems and mental deficit exacerbated or increased by the frontal lobe injury.
(b) In my judgment until the 31st March 1997the claimant did reasonably require a considerable amount of additional care. Certainly while in hospital and for many weeks thereafter much unpleasant intimate care was rendered to a difficult patient particularly by Wendy Taylor.
(c) In the joint statement (Trial Bundle I pages 256 – 260b) dated the 27th November 2002 the hours suggested by Mr Holloway as being required are in my judgment excessive particularly having regard to the amount of care given to the claimant before the incident of the 7th July 1996. I propose to reduce them substantially.
(d) Having considered the judgment of May L.J. in Evans .v. Pontypridd Roofing Ltd [2001] E.W.C.A. CIV 1657, I have decided to scale down the commercial rates by 20% for care but use Mr Holloway’s rates as the commercial rates.
“07/07/96-25/07/96
30 hours x £4.69 x 2½ weeks = £351.75p
26/07/96-08/11/96
50 hours x £4.69 x 15 weeks = £3517.50p
09/11/96-31/3/97
21 hours x £4.69 x 20 weeks = £1969.80p
01/4/97-15/10/97
21 hours x £4.84 x 25 weeks = £2541.00p
16/10/97-31/03/98
21 hours x £4.84 x 23½ weeks = £2388.54p”
01/04/98-31/03/99
21 hours x £4.98 x 52 weeks = £5438.16p
01/04/99-31/03/00
21 hours x £5.13 x52 weeks = £5601.96p
01/04/00-31/03/01
21 hours x £5.29 x 52weeks = £5776.68p
01/04/01-13/05/02
21 hours x £5.49 x 58 weeks = £6686.82p
Total £34,272.21p
Discount 20% £6,854.44p
£27,417.77p
(e) By a different route I have reached a figure similar to that sought for in the claimant’s closing submissions (See p.20).
(f) As from the 13 May 2002, the approximate day when the case management structure came into place I shall allow all the actual costs of the case manager and support worker to date. (I hope and expect that the parties can agree these figures).
(g) I shall not allow the costs of any family care or paid care after 13th May 2002 other than the costs of the case manager and support worker.
(h) Now that the case management structure has been in place for about 9 months and a rapport has been established it can be scaled down now.
(i) In my judgment 14 hours per week for the services of the support worker is all that is now reasonably required. Therefore I would allow for the support worker
£7,878 per year + ££624 expenses per year x 24 years = £204,048.
(j) I have reduced marginally the actuarial lifetime multiplier which has already been reduced by the agreed reduction of life expectancy of 12½ years.
(k) I allow similarly for the case manager:
£7,018 x 24 years = £168.432.00
(l) For occupational and/or physiotherapy I shall allow:
£240 per year x 24 years = £5,760.00
(m) For decorating etc; I shall allow
£250 per year x 22 years (discounted to allow for similar disability in old age) = £5500.00
(n) Additionally I shall allow the claimant £1500 for past transport costs and £1000 for future transport costs attributable to his disabilities arising from the incident of the 7th July 1996.
(o) I am satisfied that he now is and has been certainly since 1998 able to use public transport, drive his car or walk short distances if he wished although I accept that in many years ahead there maybe occasions when the condition of his left knee will require him to get a taxi.
(p) I do not allow the claim for clothing or aids or equipment.
The parties are engaged in settling an agreed order consequent upon this judgment and considering the possibility of a structured settlement. I shall make no formal order today but shall expect the parties within 35 days to have liaised with my clerk either to arrange for a short oral hearing so that a final order can be completed or to transmit to me for initialling an agreed order.