Dixon v Were

In this action, the Claimant, Simon Dixon, claims damages from the Defendant for personal injuries and related losses sustained following a road traffic accident on the 5^th July, 1997 (“the accident”).

The Claimant was born on the 17^th February, 1976. He attended Crosfields Preparatory School and, thereafter, Radley College (“Radley”). In September 1994, he commenced his studies at Newcastle University and was still a student at that university at the time of the accident.

In July 1997, the Claimant was enjoying his summer holidays. He was staying at his parents’ home in Shiplake. On the 4^th July, he went with friends to a party at Goring Heath. In the early hours of Saturday 5^th July, the Claimant, with five other friends went for a drive; the Defendant was the driver. All concerned had had a good deal to drink. Seat belts were not worn. Tragically, the car collided with a tree. Two passengers were killed. The Defendant was subsequently convicted of causing death by careless driving and was sentenced to a period of imprisonment. The Claimant, on any view, was gravely injured; he suffered severe physical injuries and, in addition, sustained brain damage, resulting in lasting mental health consequences.

Liability in the action was admitted at the outset, subject only to an issue as to contributory negligence. In the event, the parties agreed that a deduction of 27.5% was appropriate in this regard; insofar as it is necessary for me to do so, a matter to which I must return, I approve that agreement or settlement. It reflects a reasonable compromise on the issues as to contributory negligence which arose in connection with the accident; no useful purpose would be served by detailing them here.

Further and helpfully, the parties were agreed on a figure of £345,000 plus interest at an agreed rate, in respect of past losses. Still further: (1) various future losses relating to medical treatment and like matters were agreed; it is unnecessary to list these here and in any event they appear from the Schedule (prepared by counsel) annexed hereto (“the Schedule”); (2) during the course of the trial, general damages for pain, suffering and loss of amenity were agreed in the amount of £147,500, plus interest. It was common ground that the parties’ agreement on all these matters was without prejudice to their respective positions on the remaining issues.

It follows that the trial before me was concerned with quantum alone and, very largely, with matters of quantum in respect of future losses. At the conclusion of the trial, the following principal issues remained for decision:

Some amplification may be appropriate:

Turning to the evidence, the Claimant called, as witnesses of fact, his mother, Mrs. Dixon, his father, Mr. Dixon and a Mr. Beavis, who was at the material time the Head of the Department of Economics and the Claimant’s tutor at Newcastle University. Ms. Debbie Eaton, the Claimant’s Case Manager, gave mixed factual and expert evidence. The Defendant called no witnesses of fact.

Understandably, expert evidence ranged over a variety of disciplines, some overlapping. I heard from an employment consultant, a Mrs. Challis, called by the Claimant. As to neuro-psychiatry, Dr. Scheepers was called by the Claimant; Prof. Trimble, retained by the Defendant, furnished a number of reports (including a joint statement with Dr. Scheepers) but was not ultimately called to give evidence. Expert psychiatric evidence was given by Prof. Weller, called by the Claimant and Dr. Fry, called by the Defendant. Expert evidence as to care was given by Ms. Clark-Wilson, called by the Claimant and Ms. Carless, called by the Defendant. Expert evidence as to pensions was given by Ms. Rifkind, called by the Claimant.

A considerable body of evidence, both factual and expert, was, by agreement, adduced in documentary form without the need to call the witnesses in question. It is unnecessary to list all the witnesses whose evidence was adduced in this fashion; it suffices to note that documentary evidence was before the Court from (1) the Claimant; (2) various friends and relatives of the Claimant; (3) the neuro-psychologists, Prof. Wood, retained by the Claimant and Prof. Beaumont, retained by the Defendant; and (4) an expert financial adviser, retained by the Claimant.

I shall of course return where necessary to consider the rival evidence. At this stage, I need do no more than observe that all the witnesses from whom I heard were genuinely seeking to assist the Court. It was very properly common ground that neither the Claimant nor his parents stood to gain from the litigation; that said and, as he was entitled to do, the Defendant was concerned to subject this substantial claim to proper scrutiny. As to experts, it will be necessary to take into account that not all the disciplines with which this case was concerned are equally rigorous; further, when considering the rival views of the experts on care, it will be appropriate to consider their relevant experience; finally, in this regard, although there had been some suggestion in the Claimant’s written closing submissions of partisanship on the part of Dr. Fry, as will be seen, that point very largely disappears once close regard is had to precisely what Dr. Fry was saying.

I was grateful for the considerable assistance received from leading counsel, Ms. Rodway QC for the Claimant and Mr. Davies QC for the Defendant, and from their respective teams.

Before proceeding further, it is appropriate to record the principal physical injuries suffered by the Claimant and to set out, in summary form, a chronology of events since the accident.

Quite apart from his traumatic brain injury, the Claimant suffered the following multiple physical injuries:

As to the chronology, following the accident the Claimant was admitted to hospital with a Glasgow Coma Score of 5/15. He remained in hospital until discharged home, a little over 4 months later, on the 12^th November, 1997. From the 20^th November, 1997 until the 6^th February, 1998, he was in hospital for rehabilitation. Thereafter, apart from some relatively brief hospital visits, he was at home, cared for by his parents, until September 1998, when he returned to Newcastle University. He spent a term at Newcastle University but did not return in January 1999 and remained, instead, at his parents’ home. What might loosely be termed the Claimant’s first psychiatric crisis took place in about December 1998 but it was to some extent masked by the time he spent at Newcastle University, to which he returned, holidays apart, between September 1999 and December 2000. Although he had by then left university, between December 2000 and August 2002, he generally continued to live in Newcastle. In April 2002, he took a tenancy of a property in Henley.

In about June 2002, he was seen by a psychiatrist, a Dr. Jacobson, under whose care he has since effectively remained. In August 2002, the Claimant voluntarily admitted himself to the Priory, Roehampton. At about this time, Ms. Eaton began work as his Case Manager. In late September 2002, following weekend leave from the Priory, the Claimant became very agitated and he was “sectioned” under s.3 of the Mental Health Act 1983. On this occasion, he was compulsorily returned to the Priory. On the 11^th November, 2002, the section was revoked and the Claimant was discharged on the same day. Between November 2002 and May 2003, the Claimant then lived in the Henley property; also during this period, he was in hospital for a hip resurfacing operation.

Between May and October 2003, the Claimant was admitted as an in-patient to the Specialist Brain Injury Rehabilitation Unit at St. Andrews – Kemsley South East (“Kemsley”). In about August 2003, he began a relationship with Lianne, an auxiliary nurse at Kemsley. On the 22^nd October 2003, the Claimant discharged himself from Kemsley; thereafter he stayed intermittently with his parents, with Lianne’s mother at Kettering, with a friend in London and with his brother. In December 2003, Lianne became pregnant; for present purposes, it is assumed that the Claimant is the father.

In January 2004, the Claimant obtained a rented flat in Putney (“the flat”). He has lived there since. Lianne has lived there intermittently. The Claimant has been under the care of Dr. Jacobson, as an outpatient and Ms. Eaton. Various support workers have attended or lived at the flat.

(1) Introduction: The constituent elements of this claim may conveniently be considered under the following broad headings: (i) Future loss of earnings (“the baseline claim”); (ii) Loss of a chance of very high earnings; (iii) Loss of remuneration package benefits (company car or car allowance, insurance, pension).

The correct approach to such claims was recently and authoritatively summarised by Potter LJ, in Herring v Ministry of Defence [2003] EWCA Civ 528, [2004] 1 All ER 44, as follows:

“ [23] In any claim for injury to earning capacity based on long-term disability, the task of the court in assessing a fair figure for future earnings loss can only be effected by forming a view as to the most likely future working career (the career model) of the claimant had he not been injured. Where, at the time of the accident, a claimant is in an established job or field of work in which he was likely to have remained but for the accident, the working assumption is that he would have done so and conventional multiplier/ multiplicand method of calculation is adopted, the court taking into account any reasonable prospects of promotion and/or movement to a higher salary scale or into a better remunerated field of work, by adjusting the multiplicand at an appropriate point along the scale of the multiplier. However, if a move of job or change of career at some stage is probable, it need only be allowed for so far as it is likely to increase or decrease the level of the claimant’s earnings at the stage of his career at which it is regarded as likely to happen. If such a move or change is unlikely significantly to affect the future level of earnings, it may be ignored in the multiplicand/ multiplier exercise, save that it will generally be appropriate to make a (moderate) discount in the multiplier in respect of contingencies or ‘the vicissitudes of life’.

[24] In the situation of a young claimant who has not yet been in employment at the time of injury but is still in education or has otherwise not embarked on his career….it may or may not be appropriate to select a specific career model in his chosen field. In this connection the court will have regard to the claimant’s previous performance, expressed intentions and ambitions, the opportunities reasonably open to him and any steps he has already taken to pursue a particular path. In many cases it will not be possible to identify a specific career model and it may be necessary simply to resort to national average earnings figures for persons of the claimant’s ability and qualifications in his likely field(s) of activity. In other cases, however, it may be possible with confidence to select a career model appropriate to be used as the multiplicand for calculating loss. In either case, the purpose and function of the exercise is simply to select an appropriate ‘baseline’ for calculation of the claimant’s probable future earnings whatever his future occupation may in fact turn out to be. Thus if the career model chosen is based upon a specific occupation…, the chance or possibility that the claimant will not in the event enter that occupation or, having done so, may leave it, will not be significant if the likelihood is that he will find alternative employment at a similar level of remuneration.

[25] These are truisms so far as the conventional approach to the assessment of injury to earning capacity is concerned. Similarly, it is a truism that the assessment of future loss in this field is in a broad sense the assessment of a chance or, more accurately, a series of chances as to the likely future progress of the claimant in obtaining, retaining or changing his employment, obtaining promotion, or otherwise increasing his remuneration. None the less, such assessment has not traditionally been regarded as necessitating application of the technique of percentage assessment for ‘loss of a chance’ based on th elikely actions of third parties, as articulated by Stuart-Smith LJ in Allied Maples Group Ltd v Simmons & Simmons ...[1995] 1 WLR 1602. In cases such as Doyle v Wallace [1998] PIQR Q146 and Langford v Hebran [2001] PIQR Q160 the court has in special circumstances felt obliged to adopt such a method in order to calculate particular aspects of the claimant’s future loss claim. However, those decisions have not purported generally to replace the traditional method of adjusting the multiplier or multiplicand within the career model appropriate to the particular claimant so as to reflect (a) the likelihood of an increase in earnings at some point in the claimant’s career and (b) those contingencies/ vicissitudes in respect of a which a discount appears to be appropriate.

[26] The cases in which the percentage ‘loss of a chance’ approach has been adopted appear to …be those where the chance assessed has been the chance that the career of the claimant will take a particular course leading to significantly higher overall earnings than those which it is otherwise reasonable to take as the baseline for calculation. …. In a case where the career model adopted by the judge has been chosen because it is itself the appropriate baseline and/or is one of a number of alternatives likely to give more or less similar results, then it is neither necessary nor appropriate to adopt the percentage chance in respect of the possibility that the particular career will not be followed after all….”

As it seems to me, in the light of this guidance, the “percentage chance approach” (1) should not be adopted when considering the baseline claim; (2) should be adopted when considering the loss of a chance of very high earnings; (3) may be adopted when considering the loss of remuneration package benefits depending on the specific facts of the case.

In all this, the aim of the Court is to place a claimant so far as possible in money terms in the position in which he would have been but for the injury; necessarily, however, the process is somewhat rough and ready. The Court must do its best with the available evidence, proceeding with caution so as to steer a course between, on the one hand, any undue expectations on the part of claimants and, on the other, any unwillingness on the part of defendants to recognise the true financial consequences of the injury for which they are responsible.

(2) The baseline claim: The Evidence: I begin with the evidence as to the Claimant’s academic career prior to the accident.

The Claimant’s academic record, important though it is, is of course only part of that picture. On the evidence, the Claimant had other attributes relevant to his employment prospects. First, there was a wealth of evidence as to the Claimant’s (pre-accident) charisma, confidence and energy. In particular, I accept Mrs. Dixon’s evidence in this regard; he was gregarious, an all-rounder whose ambition was to get into the City and make a lot of money. At university, he went to the “milk round” a year early and was encouragingly received. Strikingly, both Dr. Scheepers and Mrs. Challis, who interviewed the Claimant after the accident, gave evidence to the effect that he came across very well notwithstanding his injuries. Secondly, the Claimant had the benefit of some “contacts” in city circles, derived both from family and friends and from Radley’s “buoyant” old boys network (to use Mrs. Challis’s description).

The rival cases: For the Claimant, Ms. Rodway submitted that the accident had deprived him of a career likely to have been successful and well remunerated, producing well above average earnings (and, see below, related benefits). The model for the Claimant’s baseline claim was advanced for loss of earnings as an accountant, both because an accountancy qualification was a good foundation for other careers in the financial services sector and because it was realistically indicative of the kind of minimum career path that the Claimant would likely have followed. It neither followed nor needed to follow that the Claimant would necessarily have qualified as an accountant or remained in accountancy practice. The Claimant’s 2:2 degree was not a bar to such a career model. While in the light of Mrs. Challis’s evidence, it had to be accepted that the Claimant, with a 2:2 degree would have been unlikely to obtain a job with a “top” firm of accountants or a “top” investment bank, at least without contacts, not only did the Claimant have contacts but the model for which the Claimant contended was based on average figures for all accountants employed in London firms and/or in commerce and industry. Moreover, whatever doors were closed to the Claimant by reason of his likely class of degree, Ms. Rodway underlined the range of options which remained open in the financial services sector. Ms. Rodway further emphasised the Claimant’s personal qualities including his charm, drive and determination, together with the fact that his degree was from a good university and was relevant to the city and financial world.

On this footing and based on Mrs. Challis’s evidence, the Claimant contended for staged future multiplicands in respect of his total gross earnings, as follows: £47,385, as of the date of the trial (£45,000 plus bonus/profit related pay); £52,650 from October 2005 (£50,000 plus bonus); £63,180 from October 2011 (£60,000 plus bonus); £73,710 from October 2021 (£70,000 plus bonus). An overall earnings multiplier of 22.99 had been agreed; any discount for periods of possible unemployment should be limited to multiplying that multiplier by 0.97, in accordance with the PNBA tables. Putting that discount and the agreed deduction for contributory negligence to one side, this claim amounts to some £936,509. By contrast with the Claimant’s figures, those contended for by the Defendant were out of date, unrealistically low and made no or no sufficient allowance for the likelihood that the Claimant would be employed in London.

For the Defendant, Mr. Davies sought to contrast, as he put it, the “hard evidence” as against “the dreams”. Mr. Davies invited a cautious approach both to the Claimant’s youthful expressions of ambition and to his family’s understandable hopes for him. Furthermore, Mrs. Challis’s evidence was not to be approached uncritically; not only was she was lacking in first-hand knowledge of the financial services sector but she had included in her evidence a possible career as an actuary – a suggestion both belied by and lacking any basis whatever in the evidence as to the Claimant’s mathematical abilities. The starting point should instead be the hard evidence as to the Claimant’s academic career prior to the accident; this did not display a “conspicuous work ethic”; it furnished no evidential basis for the proposition that accountancy could even be a “stepping stone”; moreover, the evidence contra-indicated any career (including fund or financial management) which entailed reasonable mathematical skills. As to “contacts”, these could get the Claimant a job but not by themselves enable him to keep it.

Against this background, the Defendant’s case was that the Court should use updated (male) national average earnings figures for all non manual occupations as a “good start”. It could not be assumed that the Defendant would likely have worked in London. On this approach, the range advanced by the Defendant was £35,000 gross for the first 8 years of the multiplier and £55,000 gross for the final 7 years of the multiplier; a median figure of £45,000 gross was to be used for the middle 8 year period of the multiplier; the total figure of £719,700 thus arrived at should, however, be reduced to reflect the “chance” element in such predictions; the overall figure should be of the order of £650,000 (on a 100% basis).

Conclusions: My conclusions on the baseline claim are these:

(3) Loss of a chance of very high earnings: The approach: In determining this issue, there was a considerable area of common ground or at least no real dispute. First, the percentage chance approach was to be applied: Herring (supra). Secondly, to obtain anything under this head, the Claimant must establish that that chance:

“…was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than 'substantial’, on the one hand, or ‘speculative’ on the other. It must be left to the good sense of the tribunal to decide on broad lines, without regard to legal niceties, but on a consideration of all the facts in proper perspective…. ”

Lord Reid, in Davies v Taylor [1974] AC 207, at p. 212. See too, to like effect, Stuart-Smith LJ, in Allied Maples v Simmons & Simmons [1995] 1 WLR 1602, at p.1614. Thirdly, damages could be awarded for the loss of even a chance as low as of the order of 10%, provided that the figures involved were not de minimis and that the loss was not speculative; on the facts of the present case, no de minimis considerations arise.

It follows that the debate here related essentially to the application of the percentage chance approach; in short, on the facts, whether the alleged loss of a chance was “substantial” or “speculative”.

Evidence and argument: For the Claimant Ms. Rodway contended that there was a substantial chance that he could have achieved very high earnings, i.e., earnings significantly higher than the top of the range of the baseline claim. That chance was put at 60% from 2011 onwards. Based on figures supplied by Mrs. Challis (who otherwise expressed no view on this head of claim) and relating to fund management and the upper echelons of accountancy, the Claimant’s loss was (formally) claimed as 60% of £866,162 = £519,697. Ms. Rodway relied on evidence as to the Claimant’s drive, personality and contacts, together with evidence which it was said supported the conclusion that some of the Claimant’s friends and contemporaries had already broken into such higher earnings brackets. Even if the claim fell to be reduced, Ms. Rodway argued that the Court should reject the notion that there was no chance of the Claimant having achieved higher earnings over the course of his career; furthermore, even a lost 10% chance would amount to a significant sum of money; on the Claimant’s multiplicand, that loss would amount to approximately £80,000.

For the Defendant, Mr. Davies urged that this claim should be rejected in its entirety. The claim was speculative in the extreme and against the weight of the evidence; without any disrespect, the Claimant could not be described as a “high-flier”. Nor did the evidence as to the Claimant’s contemporaries provide any useful comparison in support for this claim. In any event there was no or no proper basis for the multiplicand and percentage chance contended for by the Claimant. Very much as a fallback, Mr. Davies submitted that if the Court was minded to award anything under this head of claim, a “generous” award would be the loss of a 10% chance of having earned an additional £300,000, i.e. £30,000.

Conclusions: Sympathetic though I am to the Claimant, I am unable to accept the arguments for awarding him something under this heading. My reasons are these:

(4) Loss of remuneration package benefits: The various claims under this heading can be relatively shortly dealt with.

Company car or car allowance: The relevant facts may be summarised as follows:

What remained in dispute was whether any award to the Claimant under this heading should be discounted for uncertainties and, if so, by what percentage.

In my judgment, it was overwhelmingly likely that the Claimant would by now have obtained employment which gave him a car or car allowance. It is of course possible that he would not have done so but I regard any such possibility as speculative. As a matter of commonsense, albeit that my decision does not depend upon it, I cannot help thinking that if the Claimant had obtained employment which did not give him the benefit in question, then he was likely to have obtained an increased salary package. However that may be, to my mind the fact that 86% of middle/senior managers had company cars points to the conclusion that any discount could only have been both speculative and trivial. Bearing in mind the necessarily broad brush approach required in the calculation of damages in a case such as the present, for my part I would deprecate excessive tinkering and over-refinement of the calculation; accepting, as of course I do, the proper role for the percentage chance approach and the need to make discounts in appropriate cases, there is no attraction in an unwarranted and mechanistic extension of this role. I therefore propose to make no discount to the Claimant’s claim under this heading, save (1) for the application of the 0.97 figure, to allow for periods of unemployment and (2) the need for “netting” of gross figures. Accordingly, the Claimant is here entitled to an award of: £6,792 x (22.99 x 0.97), subject to such netting as appropriate; I would be grateful if the parties would undertake the necessary arithmetic.

Insurance: Under this heading there are relatively modest claims for the cost to the claimant of purchasing in the market place (1) private medical insurance (£17,242) and (2) life assurance (£4,090), equivalent to that which he would have received as a benefit of his employment.

On the evidence, some 89% of employers in the banking and finance sectors provided health insurance benefits and 78% of such employers did so as regards life insurance.

Once again, the Defendant sought to introduce a percentage chance approach and contended for a discount accordingly. I am not persuaded that any such discounting is appropriate both because of the overwhelming probability that such benefits would have been provided and because the loss to the Claimant is the cost of buying replacement cover in the market place. In any event, the modest nature of these claims tells strongly against over-elaboration. Allowing for the admitted uncertainty as to the true costs of purchasing replacement cover, I award under this heading (1) £12,500 in respect of private health insurance; and (2) £3,000 in respect of life insurance.

Pension: On the basis of (1) my conclusions as to the baseline claim and (2) the rejection of the claim for the loss of a chance of very high earnings and (3) the largely uncontroversial evidence from Ms. Rifkind, the parties have the essential raw materials for undertaking the necessary arithmetic as to this head of claim.

The principle of a loss of pension benefit was not in dispute. Once again, however, the Defendant contended for a discount to reflect the chance that the Claimant might not have received such a benefit and general uncertainties as to the future of pensions. With respect, I regard this contention as unreal and conclude that no such discount should be made. First, on the evidence adduced by Mrs. Challis, 96% of employers in the banking and finance sectors offer pension benefits (the figure for commerce and industry generally is 90%). Secondly, sympathetic as I would have been to the Defendant’s submission as to uncertainty had the claim been advanced on the basis of any particular rate(s) of return, as Ms. Rifkind explained, the claim is instead based on lost contributions; the Defendant’s case for a discount involves the most implausible assumption that (to the extent of the discount) the topic of pensions was simply ignored.

To assist the parties with their calculations and for the avoidance of any doubt: (1) This head of claim assumes a contributory pension scheme to which the employer(s) in question and the Claimant each made a 50% contribution; (2) the relevant percentage figures for contributions are those used by Ms. Rifkind (supported by Ms. Challis’s evidence); (3) the lost employer contributions represent a loss simpliciter; (4) double counting is to be avoided when dealing with lost contributions from the Claimant; if the loss is allowed for here, then appropriate deductions are to be made from the baseline claim; (5) this claim is to be reduced by the application of the same 0.97 figure as used previously, to reflect uncertainties in the employment market.

(1) Introduction: As long ago as the 22^nd June, 2001, the Claimant was made a patient and the litigation friend (his mother) was appointed. The Claimant, though on the evidence obsessed with money and knowing that his access to it is currently through a Receiver, has never applied to review his status. Nor, until the trial (apparently on the basis that the relevant evidence had not been seen before then), had the Defendant challenged it. All that said, the Defendant, as he is entitled to do, now challenges the Claimant’s status as a patient and that challenge must be considered on its merits. The scope of the challenge relates to the Claimant’s status as a patient for the purposes of both (1) the conduct of the litigation and (2) managing the fund that he will receive by way of damages (“fund management”).

It is not immediately apparent that practical consequences attach at this stage to the determination of whether the Claimant is properly classified as a patient for the purposes of the conduct of litigation – save that if he is, the approval of the Court is required for matters agreed between the parties. The position is, however, very different when addressing the question of fund management. If the Claimant is not a patient for these purposes, then he will have unfettered control over (on any view of the contested issues in these proceedings) a large fund. Moreover, the Defendant has a financial interest in this aspect of the challenge to the Claimant’s patient status. If the Claimant is not a patient, then: (1) the agreed figure of £169,344 will not be payable for the costs of the Court of Protection and the Receiver; and (2) subject to further argument (as explained below), a further £170,000 odd in respect of investment management costs may not be payable.

Matters do not, however, end there. All adults are presumed to have the mental capacity to manage their own property and affairs until the contrary is proved, the burden resting on whoever asserts incapacity: Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] EWCA Civ 70, [2003] 1 WLR 1511, esp. at [17]. Accordingly, at least given the Defendant’s challenge, the Court has an interest in determining the Claimant’s true status; the question goes to the alleged patient’s civil or human rights.

(2) The relevant test: It was common ground that the relevant test was contained in the judgments of Kennedy and Chadwick LJJ, in Masterman-Lister (supra). For present purposes, that test may be summarised as follows:

(3) Evidence and argument: In the event, the Defendant’s case here rested on the answers which Mr. Davies elicited from Dr. Scheepers and Prof. Weller in cross-examination; having applied the wrong test, Dr. Fry’s evidence could not assist the Defendant.

In a nutshell, Mr. Davies submitted that Dr. Scheepers had accepted that the Claimant had the necessary understanding so as not to be a patient, provided only that he was in receipt of appropriate assistance or advice. Dr. Scheepers’ concern, it was said, related to the Claimant’s insight and to him making a rash or irresponsible decision. As to Prof. Weller, he was likewise said to have accepted that the Claimant had the necessary understanding (again, provided appropriate advice was available); his concerns went to whether the Claimant had a balanced view of the totality of the situation.

The test in Masterman-Lister was to be applied; insofar as it produced alarming results, it was for others to change the law. The Claimant was neither a patient in respect of the conduct of litigation nor for the purposes of fund management.

For the Claimant, Ms. Rodway submitted that he was a patient both in respect of the conduct of litigation and fund management. As to the evidence of Dr. Scheepers and Prof. Weller, Ms. Rodway urged the Court to have regard to the whole of their answers; these stressed the Claimant’s lack of insight and judgment. Even (Ms. Rodway’s word) Dr. Fry accepted that the Claimant would need the protection of trustees to manage a large fund. Other evidence was also relevant. Mrs. Dixon spoke of the Claimant tiring of the whole business of litigation and having an unrealistic comprehension of money. Ms. Eaton said that when taking the Claimant to medical or legal appointments, he would try to anticipate the inquiries made of him, without understanding what was required. The lawyers and the doctors were “rubbish”. Although manipulative, the Claimant could not manage money. The Claimant’s written closing submissions helpfully summarised the position as follows:

“ The evidence shows that such superficial understanding as the Claimant demonstrates has marked limitations. He misunderstands things, fixes onto phrases [and takes them out of context] and will assume that they are the summary of a quite different point.

There is in all this a marked failure of a balanced appraisal of the totality of the information – as Prof. Weller said, the Claimant cannot see the wood from the trees. Although he could understand [singularly] concepts and issues relating, for example, to a liability discount, the Claimant could not give appropriate weight to each issue in order to reach a balanced view.”

(4) Conclusions: In the light of the Masterman-Lister test it is appropriate to deal separately with fund management (which it is convenient to take first) and the conduct of litigation.

Fund Management: Here, I have no hesitation in preferring the Claimant’s submissions to those of the Defendant. I confess that I am happy to reach this conclusion; a decision which left the Claimant with unfettered control of an inevitably large fund would, to my mind, border on the irresponsible. The risk that the fund would be rapidly and inappropriately eroded would be real indeed. Nothing in Masterman-Lister, with its emphasis on common sense, begins to oblige the Court to produce so doleful a result.

I accept of course that the Masterman-Lister test assumes that the Claimant is in receipt of advice; further, that it is an everyday occurrence for many people, manifestly not patients, to make imprudent decisions with regard to the management of their money. But the reality here is that the Claimant lacks the requisite insight and understanding to undertake fund management for himself. The evidence of Dr. Scheepers and Prof. Weller, taken as a whole, did not provide support for the Defendant’s case. It is, with respect, wrong to focus on the use of the word “understanding” while glossing over other answers as to “insight” – an integral part of the inquiry, as the passage from Boreham J’s judgment (set out above) made clear. In any event, “understanding” for the purpose of the test means or includes the ability to form a balanced view of the issue in question as a whole. I do not think that either Dr. Scheepers or Prof. Weller agreed that the Claimant had any such understanding; I accept instead the summary contained in the Claimant’s closing written submissions (set out above) as accurately encapsulating the essence of the evidence of Dr. Scheepers and Prof. Weller.

I am accordingly satisfied that the Claimant lacks the necessary mental capacity for the purpose of fund management. It follows that the Defendant is liable for the costs of the Court of Protection and the Receiver in the agreed amount of £169,344.

Given a decision pending in the Court of Appeal at the time of the trial, at the request of the parties I leave over the question of whether the Defendant is liable in respect of investment management costs; that topic, if not agreed, will have to be the subject of further argument.

The conduct of litigation: In my judgment, while this issue is not as clearcut as that relating to fund management, on balance I am satisfied that the Claimant lacked the necessary mental capacity for the conduct of litigation. On the evidence, I was ultimately satisfied that the Claimant’s apparent understanding was essentially superficial only (in the manner already described). Moreover, he has simply refused, for example, to read certain experts’ reports. As it seems to me, even in this context, he does not have the capacity to see the litigation as a whole, to instruct legal advisers appropriately and to understand, follow through and act on the advice given.

It follows that so far as the parties have reached agreement on various issues in the litigation, it is necessary that the Court should approve such agreement and, for the avoidance of doubt, I do so.

(1) Introduction: Under this heading, there fall to be addressed the costs of care and case management and certain ancillary matters. Before turning to the central facts, it is appropriate to say something as to the approach to be adopted.

In summary:

(2) The central facts: Plainly, the starting point for any consideration of the Claimant’s care and case management needs is an assessment of his injuries, damage, disorder(s) and disabilities, together with a prognosis for the future. In undertaking this exercise, as was, I think, common ground, it is the overall picture which matters; a snapshot on any one day or over a few days could be both unhelpful and misleading.

To my mind, the overall picture which emerged from the evidence was as set out in the paragraphs which follow.

It was common ground that in the accident the Claimant suffered a severe closed head injury and diffuse “organic” brain damage (i.e., damage arising from the accident). Notwithstanding a good cognitive recovery (i.e., in terms of intellectual functioning), it was also common ground that the Claimant suffers and will continue to suffer from an organic personality disorder (again, i.e., a disorder arising from the accident and the injuries sustained therein). In personality terms, going to social functioning, disinhibition and the like, the Claimant was a very different person now to the person he was before the accident.

Following the abandonment of the causation point (noted earlier), it was no longer in dispute (or, if it was, it was not realistically disputable) that the Claimant in addition suffered from an organic psychiatric affective disorder, i.e., caused by the accident and brain damage. In very crude terms, this disorder involves mood swings with episodes of extreme “highs” (hypomania) and “lows” (hence the description of this disorder as a psychiatric “bipolar” disorder).

The “worst” problems occurred when the Claimant suffered from episodes of mood swings. It was on such occasions that admission (whether voluntary or compulsory) would be required. Dr. Scheepers estimated that the need for residential care was likely to amount to some 3 months every 3 years, or, on average, 1 month every year. I accept that evidence. It is also to be noted, that whatever the source of the mood disorder, there was evidence from Dr. Fry (which again I accept) that it is amenable to medical treatment.

The particular difficulty facing the Claimant is that between the episodes of mood disorder (which are amenable to treatment as set out above), there remains his enduring personality disorder. It is this enduring organic personality which, inter alia, renders the Claimant unemployable (as was common ground). Moreover, this personality disorder cannot be cured by medical treatment, a point demonstrated by Dr. Scheepers’ compelling analysis of the Claimant’s stay at Kemsley; there, the Claimant had undoubtedly been on regular medication and was not in a position to tinker with the dosage (as was his wont, when left to his own devices). He did not, however, emerge significantly improved. Had the Claimant’s difficulty been illness simpliciter rather than damage, the likelihood is that the position would have been different.

As to the prospects of improvement in respect of the Claimant’s personality disorder, given its origin in brain damage, the prognosis is bleak. To my mind it is limited (as Prof. Weller expressed it) to the Claimant becoming better reconciled to social arrangements rather than recovery, in the sense of improved insight. Insofar as this issue remained in dispute, I am satisfied that the evidence pointing to this conclusion is overwhelming. First, Dr. Scheepers, the only neuropsychiatrist called to give evidence, supported it; as neuropshyciatry deals with problems arising or appearing to arise after brain damage, whereas general psychiatry is principally concerned with illness, Dr. Scheepers’ evidence is entitled to particular weight. Secondly, as already noted, Prof. Weller supported it. Thirdly, on a true analysis, Dr. Fry was not saying anything different or significantly different; his conclusion in this regard was modest and was expressed in terms of the Claimant’s ability “…eventually [to] make the satisfactory adjustment”. He was envisaging the Claimant coming to terms with his “reduced state” and no more. For completeness, if that be wrong and if Dr. Fry sought to go further in terms of improvement, I would reject his evidence – but, as indicated, I do not think that is what he was saying.

There was considerable debate as to the question of frontal lobe damage sustained by the Claimant, though in the light of the above I cannot help thinking that it was of less practical significance than might first have appeared. As I understood the evidence, there was or was ultimately no dispute that the Claimant had sustained frontal lobe damage. As Dr. Scheepers put it, persuasively, as frontal lobes are largely responsible for personality, it is difficult to conceive of the Claimant suffering from his (admitted) personality disorder without frontal lobe involvement. Further, there could be no serious dispute in the light of Dr. Fry’s evidence that the Claimant had sustained “significant” frontal lobe damage. What remained was the question which Dr. Fry did dispute as to whether such damage was “severe”. For practical purposes, a terminological dispute as to the distinction between “significant” and “severe”, can only be of very limited interest; so the true inquiry goes to what, if anything, underlies this distinction. As I understood Dr. Fry, the real question was whether the frontal lobe damage sustained by the Claimant was a bar to his effective adjustment; in Dr. Fry’s view, the evidence told against severe frontal lobe damage because it pointed to the Claimant functioning quite effectively when his mood disorder was under control; by contrast, with severe frontal lobe damage his disinhibition and lack of motivation would be “pervasive”. As may be anticipated, these views were a precursor to the Defendant’s submission that the Claimant required less care than was contended for on his behalf.

For my part, insofar as it matters, I prefer in general the guidance given to me by the evidence of Dr. Scheepers and Prof. Weller to that which emerged from the evidence of Dr. Fry. In the case of Dr. Scheepers, I am again influenced by the fact that he is a neuropsychiatrist. In the case of Prof. Weller, I think he has more accurately captured the sense of the available factual evidence than has Dr. Fry. On the basis of Ms. Eaton’s evidence, Mrs. Dixon’s evidence and a fair reading of the carers’ notes, there is, in my judgment, no real doubt that the Claimant needs and will continue to need support. As Ms. Eaton explained it, it is not that the Claimant cannot be alone for 2-3 days at a time; indeed, the carers’ notes reveal that he does from time to time take individual decisions without prompting (for example, to go to the gym). However, support is needed for him to build his life (within its new boundaries). Ms. Eaton said and I accept that he cannot plan and shop or eat regularly without support; similar concerns arise in connection with his cleaning the flat. Without support, he would likely be unmotivated and take part in few if any activities. As Dr. Scheepers expressed it and as I accept, the Claimant can function well in a structured environment with boundaries; if, however, the structure is taken away, there is the risk of a downward spiral. Likewise, I found Prof. Weller’s evidence as to the Claimant’s poor performance in the “Babcock test” (the details of which it is unnecessary to set out) persuasive; this points to the Claimant needing considerable help and guidance on day to day matters so as to provide him with a “very stable very regulated” life which he needs; while, according to Prof. Weller it is conceivable that the Claimant’s need for support might diminish in the future, it is too early to assess that “probability” as he is not yet at “first base”. All this evidence suggests problems with the Claimant’s executive functioning (i.e. difficulties with planning, structuring, problem-solving and insight) consistent with at least a “significant” degree of frontal lobe damage. Beyond that I need not explore the debate between “significant” and “severe”; but insofar as Dr. Fry gave evidence contrary to these conclusions, I am unable to accept it.

Pausing here, enough has been said to indicate perhaps the most painful human dilemma in this exercise. The Claimant, to his credit, remains a spirited young man; he does not and probably does not want to recognise the damage he has suffered. The challenge for those engaged in providing care is to reconcile him to an acceptance of such care that (by providing a structured environment) will enable him to maximise his reduced capabilities, while harnessing and not suffocating that spirit.

The nature of this challenge appears from a consideration of the Claimant’s attitude to care. From time to time, the Claimant has rejected support-workers and even, on occasions, the efforts of Ms. Eaton to assist him. There have been incidents involving rudeness on the Claimant’s part. He wanted support-workers who were, in his view, his social equals. He was adamantly opposed to residential treatment. As evidenced not least by Ms. Eaton’s diary, he has objected to live-in care, perhaps especially when Lianne has been present; but if live-in care engaged on a weekly basis is intrusive, daily carers, paid by the hour, operate on the basis of fixed hours; the Claimant has had real difficulty adjusting to an inflexible regime of that nature. The Claimant’s relationship with Lianne has added further complications; while caution is required because Lianne has neither been represented nor given evidence, on the material before the Court, it would not be unreasonable to draw the inference that Lianne has seen support-workers as rivals who have, moreover, restricted the flow of money to her and the Claimant; this perspective may well have influenced the Claimant’s thinking. Concerns as to the Claimant’s relationship with Lianne are bound to be acute at or around and following the time when she is due to give birth (in September of this year).

All that said, there is evidence which I accept, in particular from Mrs. Dixon and Ms. Eaton, of an emerging and more hopeful picture. The Claimant was beginning to accept that support workers could be of benefit to him. The trend was towards acceptance of the assistance which carers, favoured by the Claimant (examples being Kate and Catherine), could provide. Such acceptance has extended to live-in care which had continued uninterrupted from the 9^th June until the trial in July, a period of some 4-5 weeks. This was so despite the presence of Lianne at the flat for much of that time; it had been successfully established (at least over that period), that the support-worker was present to assist both the Claimant and Lianne, rather than as a rival to Lianne. It was to be underlined that these accomplishments had been attained with support-workers untrained in respect of dealing with those with brain injuries. In Ms. Eaton’s view, the Claimant was almost at the point where it would be appropriate to move towards engaging trained support-workers; such carers could do more to assist in rehabilitation (i.e., rebuilding the Claimant’s life, insofar, as discussed above, that was feasible) and would bring more continuity (by contrast with the frequent changes in untrained support-workers). The time was not, however, yet ripe for moving to directly engaged (rather than agency) workers; given the Claimant’s volatile nature, employment problems could result. This overall developing picture was consistent with Prof. Weller’s view that while the Claimant would “kick and struggle”, Ms. Eaton would over time persuade the Claimant to accept more of the benefits which care could provide. For completeness, the working assumption was that after the birth of the baby, Lianne and the baby would not remain at the flat; were that assumption misplaced, other agencies might need to be contacted for reasons which need not be elaborated upon here.

In summary and weighing all the evidence, I am persuaded to approach the provision of care on the basis that the Claimant will more likely than not accept care. Given (1) the inflexibility of daily carers operating on the basis of fixed hours and (2) the Claimant’s need for support (as already discussed), it is probable that the Claimant’s acceptance of care will extend to live-in carers. I think it unlikely that he will reject case management for any significant periods of time but there may well be periods when he does reject support workers. Further and as earlier foreshadowed, there are likely to be interruptions to his care in the community by the need for voluntary or compulsory hospital admissions; so far as it remained in dispute, the evidence was overwhelming that the Claimant would opt for private rather than NHS care.

(3) The provision of care and case management: To begin with, there was no or no real dispute as to the constituent elements of the care package: namely, (1) a case manager; (2) support workers; (3) a neuropsychiatrist and neuropsychologist.

As it seemed to me, by the end of the evidence, it was clear that the requisite care package would need to take account of the following considerations:

The rival arguments: With such considerations in mind, I turn to the rival arguments as to care models. Based on the evidence of Ms. Clark-Wilson and Ms. Eaton, the Claimants’ case can be shortly summarised; the fund should make provision for the following:

The Defendant’s case was to the following effect:

Decision: In general, I prefer the Claimant’s approach to that of the Defendant. First, in part, this preference flows from the conclusions already arrived at as to the Claimant’s condition and the prognosis for his future. For instance, Dr. Fry’s “optimism” must be seen in its true and very limited context (as discussed above) or rejected. Plainly this has consequences for the care needed by the Claimant, as realistically Mr. Davies in his closing (written and oral) submissions came to recognise. Secondly, I had no doubt in preferring the combined evidence of Ms. Eaton and Ms. Clark-Wilson to that given by Ms. Carless. Ms. Carless had little or no relevant experience of long term care in the community of those with brain injuries; her proposal of reducing care to 2 hours per day after 2 years was based on a misunderstanding of Dr. Fry’s evidence and was in any event unreal; likewise her suggestion of hourly rates (see above) was unpersuasive and was belied both by the evidence of Ms. Eaton (who had no conceivable interest in paying more than the going rate) and that contained in the PNBA document “2003 Facts and Figures” to which Ms. Rodway made reference. Thirdly, to some extent the Defendant’s case was self defeating; if there was inadequate provision for care in the community, the likelihood would be the need to budget for a breakdown followed by an increased requirement for hospital admission, for which the Defendant would in any event be liable. Fourthly, by focusing on an average 8 hour day for the suggested care regime, the Claimant, as Ms. Rodway rightly submitted, had made a considerable allowance for the significant imponderables in the case.

It does not, however, follow that the Claimant’s proposed figures require uncritical acceptance. There was force in Mr. Davies’s submission that the Claimant’s model was untried and that “episodic rejections” of care remained likely. While it is true that last minute rejection or sackings of carers might produce no savings, there could well be periods when the Claimant did reject care. Further, on all the evidence, a suffocating level of care was neither warranted nor likely to be acceptable to the Claimant and took insufficient account of the prospects of improvement consequent upon rehabilitative care.

Doing the best I can and recognising the rough and ready nature of the exercise, I am satisfied that a fund premised on the assumptions which follow would do no injustice to the Defendant and would suffice to provide properly for the Claimant in his lifetime, however precisely it comes to be applied:

(4) Miscellaneous Items: Finally, I come to a variety of additional expenses claimed on behalf of the Claimant. The principle is not in dispute; the Claimant is entitled to recover and is only entitled to recover, reasonable sums in respect of extra expenses attributable to the accident. I propose to take these items fairly briefly and robustly, seeking to strike a balance between a tendency (if I may say so) towards inflation on the part of Ms. Clark-Wilson and a degree of resistance on the part of the Defendant to face up to the full financial consequences of liability.

(a) Loss of services: Gardening and DIY: The Claimant has claimed some £23,000 and the Defendant has offered some £12,000. But for the injury, the Claimant is unlikely to have devoted much time to such activities. The point does not bear elaboration; I allow £15,000.

(b) Additional support if the Claimant has a child/children: The claim here is for some £111,000, for support worker assistance relating to contact by the Claimant with any such children, on the assumption that they are living apart from him and that such visits take place without the mother being present. As advanced, there is no overlap with the claim for support worker care – this claim contemplates the presence during such visits of an extra support worker on grounds of safety. The Claimant recognises that the whole claim is shrouded with uncertainty but advances it on the basis of Ms. Clark-Wilson’s experience and on the basis that the Claimant has one child only, when there is a significant “risk” that he may father more.

To my mind, notwithstanding the Claimant’s substantial concession as to the number of children, the uncertainties here are significant; moreover, if there are in the event true risks, some social services involvement is likely to be unavoidable. In the circumstances, while I accept that there is a proper claim to be made in this regard, a significant reduction should be made to the sum claimed; I therefore allow the claim but in the amount of £50,000 only.

(c) Support Worker Expenses: This is a claim for what might be termed petty cash expenses incurred by the support worker, such as outings to the cinema, swimming, meals in a public house and the support worker’s food in the home. There is no dispute that this is a valid head of loss; the Claimant claims £40 per week; the Defendant accepts £25 per week. Elaboration is unnecessary; I allow £30 per week.

(d) Support worker recruitment, training and insurance: As I understand it, the Claimant claims some £1,500 per annum and the Defendant accepts some £409 per annum. Even on the basis (as already canvassed) of the engagement of trained workers, some specific training will always be necessary; I accept Ms. Eaton’s evidence in this regard. Provisionally, I would be minded to allow £1,000 per annum under this heading but I would be prepared to hear brief further argument if it was thought that this figure did not appropriately represent the premises which have underpinned my conclusions as to the fund as a whole. In the absence of any further argument, the £1,000 per annum figure will stand.

(e) Outings, courses, gym: The claim here is for the expenses incurred by the support worker in accompanying the Claimant on those activities aimed at giving him a structured day. The claim is advanced in the amount of £1,000 per annum, based on Ms. Clark-Wilson’s experience. The Defendant has not accepted that any amount is due. That is unrealistic; Ms. Clark-Wilson is substantially right; I would allow £750 per annum under this head.

(f) Taxis: This is a claim for additional taxi use, over and above his claim for loss of a company car or car allowance and based on the Claimant’s difficulties with public transport together with his use of taxis depending on mood swings. Bearing in mind that the Claimant would likely have made some use of taxis even had he been uninjured and that the claim is only for reasonable additional expenses attributable to the injury, I would allow this claim but only in the figure at the bottom of Ms. Clark-Wilson’s range, namely £1,000 per annum.

(g) Heating: This claim relates to the additional heating cost due to the Claimant being at home in his flat when he would otherwise, but for the accident, have been out. Unrealistically, the Defendant accepts nothing under this heading; even with support and a range of activities, he will perforce spend more time “in” than would otherwise have been the case. I allow £500 per annum, the figure at the bottom end of Ms. Clark-Wilson’s range.

(h) Increased telephone use: This claim relates to the Claimant’s increased use of the telephone to call his mother and to call and text others. To my mind, this claim has been established on the evidence; it is attributable to the accident and is not in the relevant sense unreasonable. The Defendant perfectly properly asked for disclosure of the Claimant’s telephone records but has not advanced any additional submissions in the light of that disclosure. I allow this claim in the amount of £600 per annum as claimed; it is important that the Claimant should not feel more isolated than is unavoidably the case in the light of the accident.

(i) Holiday costs: This claim goes to the question of support worker expenses and wages when accompanying the Claimant on holidays. As the claim finally evolved, the assumptions were that the Claimant took 4 weeks holiday per year, that the support worker incurred expenses of £750 per week in accompanying him and that an additional support worker would be required for two of those 4 weeks, on the footing that a family member or friend/ girlfriend would accompany the Claimant for the remaining two weeks.

As to expenses, I am not persuaded that a support worker would always accompany the Claimant if or when he was on holiday with a family member, friend or girlfriend. I therefore think that the claim for support worker expenses should be restricted to 3 weeks per annum rather than the 4 weeks claimed; this reduction allows for the fact that a support worker may sometimes accompany the Claimant and whoever he is travelling with but sometimes will not. With that qualification, the claim for expenses was essentially reasonable; I allow it in the sum of £750 per week as claimed; that sum is hardly excessive, wherever the Claimant takes his holidays.

As to wages, I again think that the claim for the wages of an additional support worker is reasonable if limited (as the Claimant accepts) to 2 weeks per annum. This claim permits the Claimant to take a holiday even when no family member or friend/girlfriend is available to accompany him; on that footing, the presence of an additional support worker is reasonable. I would be grateful if counsel would do the necessary calculations based on my earlier conclusions as to the rates for support workers.

As foreshadowed, I seek the assistance of counsel in preparing the Schedule and will hear further argument (if any) on the limited matters to which reference has been made. I shall of course also welcome the assistance of counsel in drawing up the appropriate order and on all questions of costs.

£35,000 p.a. x 28.67 for S/W = £1,003,450

£1,560 p.a. x 28.67 for S/W expenses = £44,725

£1,000 p.a. x 28.67 for training/recruitment of S/W = £28,670

£750 p.a. x 28.67 for outings = £21,503

£1,000 p.a. x 28.67 for transport = £28,670

£500 p.a. x 28.67 for heating = £14,335

£600 p.a. x 28.67 for telephone = £17,202

global sum of £15,000 for gardening/DIY = £15,000

£2,250 p.a. x 28.67 for S/W holiday costs = £64,508

£3,654 x 28.67 for Additional S/W wages = £104760

£17,000 p.a. x 28.67 for C/M = £487,390

global sum of £31,000 for neuropsychiatric treatment = £31,000

global sum of £55,000 for neuropsychological treatment = £55,000

£9,500 p.a. x 28.67 for hospital admissions = £272,365

global sum of £50,000 for additional S/W assistance if C has children = £50,000

Multiplier as claimed 28.67