Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE FIELD
Between :
Mark Noble | Claimant |
- and - | |
Martin Raymond Owens | Defendant |
Gerard McDermott QC and William Latimer-Sayer (instructed by Reynolds Williams) for the Claimant
Andrew Hogarth QC and Catherine Peck (instructed by Cogent Solicitors) for the Defendant
Hearing dates: 14th, 15th, 16th, 17th, 18th, 21st, 22nd, 23rd and 25th January 2008
Judgment
Mr Justice Field:
Introduction
The trial in this action is concerned with a number of issues going to the quantum of damages payable to the claimant (“Mr Noble”) arising out of a road accident caused by the admitted negligence of the defendant.
The accident happened on 2nd September 2003 at about 3.15 pm. Mr Noble was riding his motorbike down the A336 towards Cadnam, Hampshire when the defendant drove out of Bourne Road onto the A336 into Mr Noble’s path. Mr Noble hit the front offside of the defendant’s vehicle and flew off his motorbike onto the hard surface of the road.
Mr Noble’s credibility
Mr Noble was asked about a number of matters going to his credibility as a witness. In the first place he was invited to admit that his declared income in his tax returns for 1999/2000, 2000/2001, and 2001/2002 had been knowingly understated. At first he said that the returns were true but he soon admitted that he had not declared income that he had earned from a number of jobs.
It was also suggested to him that it was clear from a photograph taken at the BUPA Hospital, Southampton, on 2 September 2004, that his claim that the clasp of a gold bracelet had been damaged in the accident was untrue. The photograph shows Mr Noble wearing a gold bracelet whose clasp is not broken. Mr Noble testified that at Christmas 2006 his partner, Mrs Janet Stanton (“Mrs Stanton”), had given him a gold bracelet very similar to that which was broken in the accident. I was shown both bracelets, the broken one and the unbroken one. They are indeed very similar. I accept Mr Noble’s evidence that the broken bracelet I was shown was broken in the accident. I think he is mistaken as to when he acquired the unbroken bracelet seen in the photo; in my judgement, it was acquired before 2 September 2004.
In Mr Noble’s original Schedule of Loss dated 27 September 2007 there is a claim for the increased cost of a cruise alleged to have cost £7,500.00. The Schedule contained the usual statement of truth signed by Mr Noble and in support of this claim he produced a cheque stub dated 28 June 2006 for £7,500 endorsed: “Janet + Holiday”. In fact the cruise cost £8,298 which was paid by way of a 10% deposit in June 2006, followed by the balance of £7,468 on 25 October 2006. Mr Noble accepted in evidence that he wrote the words on the cheque stub and said that the cheque was to put Mrs Stanton in funds for the holiday. But this cannot be right because the balance was not paid until three months later and it was Mr Noble who paid the balance, not Mrs Stanton.
Mrs Stanton testified that the cheque dated 28 June 2006 was to repay her for the deposit and to cover other expenses. There is no doubt that the cheque was honoured shortly after it was written and that Mr Noble paid the balance due for the cruise out of his Halifax bank account on 25 October 2006. I accept Mrs Stanton’s evidence and I acquit Mr Noble of dishonestly proferring the cheque as evidence to support his claim. I am not satisfied that the reliance on the cheque stub was anything other than an honest mistake. Mr Noble should have been more careful but he was not deliberately seeking to mislead the defendant or the court.
Finally, Mr Noble was asked about a claim in his first Schedule of Loss for the cost of a Chrysler Voyager equipped with a hoist for his wheel chair. The pleaded cost of this vehicle in the first Schedule is £36,801.98 and in support of the claim Mr Noble produced a confirmation of his order which stated: “Deposit Received:- £36,801.98”. This figure included VAT which was not in fact due because Mr Noble is disabled. Mr Noble was accordingly credited with the VAT which was put towards the cost of fitting the hoist. The invoice he received for the vehicle dated 16/12/06 did not include VAT. I was unimpressed with Mr Noble’s assertion in the witness box that when advancing this claim in the original Schedule it did not cross his mind that the VAT had been repaid. In my judgement, Mr Noble succumbed to the temptation to overstate this part of his claim.
The question I have to ask is whether I should disbelieve all or some of Mr Noble’s evidence because he knowingly understated his income in his tax returns and sought to inflate the price of the Chrysler in the first Schedule of Loss. Having seen Mr Noble in the witness box, and accepting as I do the truthfulness of the other factual witnesses whose evidence corroborates Mr Noble’s, including Mrs Stanton, I find that Mr Noble’s evidence was truthful save for his claim that he overlooked the repayment of VAT in the first Schedule of Loss. However, I think that he had a tendency to exaggerate both how long he would have gone on working if he had not been injured and his capacity to do all the work on which his claim for loss of earnings is based.
Mr Noble’s injuries
The principal injuries suffered by Mr Noble were as follows.
Pelvis
An “open book” fracture consisting of fractures of the inferior pubic rami bilaterally, diastasis of the symphisis pubis, fracture of the left sacral ala and widening of the anterior two thirds of the left sacro-iliac joint.
Left fibula and tibia
Closed fracture of the left fibula neck. A complex spiral web fracture of the left tibia at the junction of the distal third of shaft and distal metaphysic 2” above the ankle.
Right wrist and hand
Fracture of the neck of the right metacarpal and volar dislocation of the carpus taking with it a small fragment of the volar tip of the distal radius and a displaced fracture of the fifth metacarpal.
Left wrist
Complex intra-articular fracture of the distal radius and uvulsion fracture of the ulna styloid with the carpus dislocated dorsally and radially.
Spine
Burst fracture of the body of T4.
Head
Closed injury with an undisplaced linear fracture of the right occiput.
The treatment of the orthopaedic injuries
Mr Noble was admitted to Southampton General Hospital where he remained until 7 November 2003. During this period he had five operations under general anaesthetic in the course of which: (i) an anterior external fixator was applied to the pelvis which became loose and was not successfully re-fixed and which was eventually removed; the left sacro-iliac joint was held with two plates and an anterior external fixator; (ii) an external fixator was applied to the left tibia which was then removed and the fracture held with a reamed, statically locked, intramedullary nail; (iii) a formal carpal tunnel decompression was performed on the left wrist and the fracture of the right metacarpal was treated by formal open reduction and then the insertion and later removal of two Kirschner wires; and (iv) the fracture of the left radial styloid was reduced and held with two Kirschner wires which were later removed. In the course of this treatment Mr Noble developed an MRSA infection that had to be treated with antibiotics.
Following his discharge from Southampton General Hospital, Mr Noble had a number of further operations on his left wrist, the left tibia and his pelvis. The later operations on his pelvis were carried out by Mr Bircher, a pelvic injury specialist, at St George’s Hospital, London. Whilst he was admitted to this hospital, Mr Noble again contracted an MRSA infection. Regrettably, Mr Bircher failed in his attempt to re-fix the fractures to the front of the pelvis.
In total, Mr Noble has had 11 operations involving 18 separate procedures.
Mr Noble’s current condition and prognosis
The orthopaedic experts are both agreed that the orthopaedic injuries suffered by Mr Noble were severe and life-threatening. Although parts of his pelvis have stabilised it remains seriously damaged and weakened, particularly at the front, with the result that he can only walk short distances –75 to 80 feet-- and then only with the aid of crutches. In his home he can move about holding on to the furniture but otherwise he is wheelchair dependant.
The grip of his left hand is weak and he has limited movement in his left wrist which is held in a Futuro splint. The grip of his right hand is also weak. The injury to the left tibia has left an ugly lump in his leg and he has been left with some unsightly and not insignificant scarring in various places.
Mr Noble’s orthopaedic condition resulting from the accident is not going to change, save possibly in his left wrist which could deteriorate due to advanced post-traumatic osteoarthritis, in which case it might be appropriate for him to undergo arthrodesis of this wrist.
Although the pain Mr Noble suffers from his injuries improved by about 10%-15% in the period June 2006 to February 2007, he still suffers very considerable pain, particularly in the winter months, for which he takes analgesics and anti-inflammatory drugs. He also gets relief from heat pads and a TENS (Transcultaneous Nerve Stimulator) machine applied to the affected parts of his body.
He has an intermittent ache in his right wrist about 30%-35% of the time and is aware of aching in his left wrist approximately 50% of the time. He has a dull throbbing pain in his lower back 25%-30% of the time. He also has constant numbness affecting his left buttock, left groin, the lateral side of the right thigh, the medial side of the left calf and the dorsum of the left foot. In addition, he frequently experiences neuropathic pain in his scrotum and there is a constant ache in his left hip and intermittent dull pain in the distal part of the left shin and on the medial side of the left ankle for 15%-20% of the time.
On medical advice, Mr Noble is due to attend a three month residential pain clinic in Bath. There is some chance that this will reduce the pain and ought to help him manage it better in the future. However, the probability is that he will continue to suffer the pain I have described for the foreseeable future and will continue to need to take analgesics and anti-inflammatories.
The drugs Mr Noble takes to help with the pain have a tendency to render him constipated. He deals with this by taking yet further drugs which occasionally have led to faecal incontinence.
The injury to the pelvis has damaged the nerves that control penile erection function with the result that Mr Noble is now impotent. He has been treated with Viagra and Caverject intracorporeal injections but without any success. There is a possibility of a surgical implant but I am satisfied that Mr Noble will not take up this option, and in taking this position I find that he would not be acting unreasonably. Accordingly, I conclude that Mr Noble will remain impotent for the rest of his life.
The pelvic injury has also led to an incontinence problem probably caused by damage to the nerves that control the bladder and/or by some damage to the physical structure of the bladder itself and/or to the sphincter. During the day accidents can happen when Mr Noble thinks that micturation has finished but it has not, with the result that he wets himself and must change his underwear and trousers. He also experiences an exaggerated urinary urgency, so that if he goes out, he has to plan to be near a lavatory. At night, Mr Noble generally wakes sensing that he needs to urinate and uses a urine bottle. However, it not infrequently happens that he thinks that he has finished when he has not which leads to spotting or more serious wetting. The urology experts, Mr Andrew Wedderburn and Mr Jonathan Ramsay, are agreed that there is a range of surgical procedures and self-help management strategies that should improve Mr Noble’s incontinence problem, particularly at night. The principal management strategies proposed for the night-time problem are reduction of liquid intake and the wearing of a Convene, which is like a large condom which drains into a reservoir. To guard against the Convene coming off the penis at night, the neck that goes over the penis is elasticated and made of a material that adheres to the skin.
The suggested surgical procedures all depend on Mr Noble undergoing a preliminary urodynamic evaluation under general anaesthetic to assess whether the bladder is suffering from a lack or excess of contractivity. If there is excessive contractivity, antichlorinergic drugs could help and it is possible to enlarge the bladder by a cystoplasty, but this is a major procedure and is towards the end of the spectrum of treatment options. If the problem is lack of contractivity, Mr Noble could try self-catherisation at night before he went to bed, although self-catherisation is not indicated at present. There is also the possibility of a permanent catheter being fitted that enters the bladder from the top, rather than through the urethea, but this would be a last resort. If it has been damaged, the sphincter could be operated on, but this too would be well down the range of options.
Mr Noble has also had a recurring problem with urinary infections which have been treated with anti-biotics and increasing his liquid intake. When suffering such infections his urine can be unpleasantly smelly and he is prone to fever.
Mr Noble does not want to undergo a urodynamic evaluation or any invasive treatments indicated by such a study. He says he has had enough of operations and considers that the likely benefit does not justify the discomfort and risk, including the risk of infection. In my judgment, it would be unreasonable for Mr Noble to refuse to submit to a urodynamic evaluation and to refuse to submit to any drug therapy or penile self-catherisation that is indicated by the outcome of such an evaluation. Although a urodynamic study involves a general anaesthetic it is only mildly invasive and the risk of infection is low – between 2%-5%. I am also of the view that it would be unreasonable for Mr Noble to refuse to try wearing a Convene if there is still a leakage problem after the treatments I have identified. Convenes can give rise to soreness of the penis but not in every case. Convenes can also come off the patient if he is overweight (which Mr Noble is) and/or if he tosses and turns in the bed, which Mr Noble occasionally does when he has nightmares. At the very least Mr Noble should see how he gets on with a Convene.
On the evidence I heard from both urological experts, I conclude that the range of possible treatments available offers a good possibility of significantly reducing substantial wetting to the point that the problem could be dealt with by incontinence pads on the bed if a Convene were not worn or came off. However, there is a real chance that the treatments would fail to achieve this improvement, leaving Mr Noble with a problem of substantial wetting at night.
Mr Noble has developed a serious psychiatric disorder as a result of the accident. He has nightmares re-living aspects of the accident and/or of being in pain in hospital and/or of being held down. When he wakes from these dreams he is wet with sweat. His mental state is also deeply affected by his impotence, incontinence and lack of physical mobility. His injuries compromise him in coping with his psychological experience, as does the sleep disturbance he suffers as a result of the nightmares. The pain is also a constant reminder of the accident and its effect on him. He suffers from depression, and listlessness. He feels deeply humiliated to be in a wheelchair unable to live the full and active life he led in his work, socially and in his relationship with Mrs Stanton prior to the accident. He reacts badly to reminders of the accident, such as road safety messages on the television which feature a motor bike accident.
I heard evidence on Mr Noble’s psychiatric problems and how long they are likely to endure from a Fellow of the Royal College of Psychiatrists, Dr Morgan R O’Connell. Between 1980 and 1995 Dr O’Connell held the position of Consultant Psychiatrist in the Royal Navy at the Royal Navy Hospital, Haslar, Gosport. He is now Chief Consultant Psychiatrist to Combat Stress, Ex-Services Mental Welfare Society.
I found Dr O’Connell to be an impressive witness. It was Dr O’Connell who set up the first Post Traumatic Stress Disorder unit in the UK. He told me that many lessons had been learned in the aftermath of the Falklands War about the psychological effect of experiencing deeply traumatic events.
Dr O’Connell had originally been of the view that Mr Noble was suffering from an Adjustment Disorder, but having reviewed all the relevant witness statements he changed his diagnosis to one of Post Traumatic Stress Disorder (PTSD) applying the criteria laid down in the ICD 10 Classification (World Health Organisation 1992). He accepted that under the criteria adopted in DSM (American Psychiatric Association 1994) Mr Noble’s condition was an Anxiety Disorder and not PTSD but was firmly of the view that PTSD was the correct diagnosis. In my judgment, the precise characterisation of Mr Noble’s psychiatric disorder does not signify. What matters are the symptoms of Mr Noble’s condition and the prognosis.
Dr O’Connell explained that most people get over the psychological effects of trauma but some do not and if the condition persists for two years, it is likely that the condition will persist over the long term. In his opinion, this is the prognosis applicable to Mr Noble, particularly in view of the perpetuating factors, namely, the nightmares, the constant pain, the night sweats, the incontinence and the physical disablement. Indeed, it was Dr O’Connell’s opinion that if Mr Noble’s relationship with Mrs Stanton foundered his psychiatric state would worsen. He did not think the disorder would resolve or be substantially modified either by drug or other therapies or upon the conclusion of the litigation.
Mr Noble has been receiving psychological therapy from a chartered clinical psychologist, Dr Nicholas Moffat, since early November 2002. Dr Moffat was called as a witness of fact by Mr Noble. He testified as to Mr Noble’s continuing symptoms. In cross-examination he was justifiably treated as an expert witness. His views on the prognosis of Mr Noble’s psychiatric disorder were substantially similar to those of Dr O’Connell.
I accept Dr O’Connell’s and Dr Moffat’s prognoses. In my judgement, Mr Noble’s psychiatric disorder is likely endure for a long time, quite possibly to end of his life.
Mr Noble’s life before and after the accident
At the time of the accident, Mr Noble was 37 years old. He was a fit, vigorous and hard working man. He took exercise by running and rode an alloy lightweight bike. He occasionally played 6-a-side football and enjoyed swimming, ten pin bowling and visiting theme parks with Mrs Stanton and her children.
He met Mrs Stanton in 1999 after his marriage had broken down and moved into her house at 21 Mulberry Gardens, Fordingbridge in 2000. In 2003 they became engaged to be married. They had a close and loving relationship in which sex played a full part.
Mr Noble is a skilled motor mechanic having been taught all about cars by his father. Prior to the accident, he was also a capable builder. In 2001 he worked for a time for ER Repairs doing underpinning work, bricklaying, 360 degree digger driving, ground work, demolition, plastering and painting. Later that year he became a self-employed builder working for his own account. His speciality was paved driveways. He also helped Mrs Stanton with her flower and plant stall at Salisbury market. In the early mornings he would load her van with plants and flowers and drive it to the market where he would erect the stall and unload the stock. In the evenings he loaded the unsold stock in to the van and drove it home. He also helped look after the plants that Mrs Stanton was rearing in poly tunnels in her garden.
In August 2003, a month before the accident, Mr Noble acquired for himself a stall at Fareham market from which, like Mrs Stanton, he sold plants and flowers.
The accident has had a devastating effect on both Mr Noble and Mrs Stanton. As I have said, he is now substantially wheelchair dependant and in the morning he needs someone to help him get up, especially with his feet, and to care for him at night with the bed wetting, nightmares, night sweats and pain. At the same time, Mr Noble has been depressed and emotionally frail and very hard to live with. He finds his incontinence and disablement embarrassing, demoralising and humiliating. The same is true of his impotence which has totally changed his relationship which Mrs Stanton who is now his carer, rather than his lover. He is no longer a fit, active man but instead is seriously disabled and in constant pain. He can no longer work but he is able to drive a modified Land Rover and a specially adapted people carrier that can accommodate his wheel chair. He is also able to mow the back and front lawns of his rented property at Ryan Close, Ferndown, although he cannot do these tasks in one go.
If he feels up to it he goes “off roading” in the Land Rover on Sundays which he describes as “play days”. He does not race but he enjoys manoeuvring his vehicle over the obstacles; he spends a lot of the time seated in his Land Rover watching other off-roaders.
Since January 2005, he has employed a “buddy” to assist him get out and about and with other activities, such as restoring old Land Rovers. The first buddy was with him from January 2005 to August 2005; the second from June 2006 to May 2007; and the third, Paul, from May 2007 to the present day.
General Damages for Pain and Suffering and Loss of Amenity
This being a case of multiple injuries, the right approach is to take an overall view, assisted by the updated figures for the individual injuries contained in the JSB Guidelines (8th ed), but guarding against double counting. The updated total of the lower end of the brackets for pelvic injuries, impotence, urinary incontinence, left leg injuries, left wrist injury, injury to right wrist, spinal injuries, closed head injury, injury to right little finger, psychiatric injuries, multiple scarring and soft tissue injuries is £195,305. This in my view is a guide but needs to be substantially discounted to avoid double counting.
Mr McDermott QC for Mr Noble submitted that the claimant was overall in the position of a severely injured paraplegic but not as bad as a tetraplegic and that the award should be towards the top end of the JSB paraplegia range, i.e. £127,250 to £165,500, updated to £134,430 to £174,838. Adopting this approach he submitted that the appropriate award was £160,000.
Mr Hogarth QC for the defendant was also of the view that the JSB figures for paraplegia updated to current values were the best guide to arriving at the appropriate award.
I agree with the suggestion that the general damages should be arrived at by focussing on the updated JSB paraplegia figures and at the same time taking account of the particular features of Mr Noble’s case. Adopting this approach I think that Mr McDermott is right when he submits that the case comes towards to the top of the paraplegia range and I award £157,500 by way of general damages for Mr Noble’s pain, suffering and loss of amenity.
Future treatment, therapies and medical expenses
Future surgery
The only issue concerning future scar revision surgery is whether I am satisfied that Mr Noble will actually undergo such surgery. He was adamant in the witness box that he would not undergo surgery of an invasive nature to help with his incontinence problems. He had contracted MRSA on two occasions as an in-patient and had had enough of hospitals. In my judgement, for the same reasons, Mr Noble would also not have scar revision surgery, particularly since the scarring is on parts of his body normally covered by clothing.
Future urological treatment and reviews
Mr Noble has been seeing a Consultant Urologist, Dr Cummings, as a private patient. I am satisfied that he will not undergo urodynamic testing and will only undergo other invasive procedures if his condition becomes very painful or seriously threatening to his general health.
Mr Ramsay, the defendant’s urological expert was of the view that annual urological interventions in the nature of cystoscopies and other endoscopic procedures would not be necessary annually, and on this basis, estimated the annual cost of review and treatment over the next ten years at £3000. Doing the best I can I fix the annual cost of urological treatment that Mr Noble would submit to at £1000 and award this sum to be multiplied by the agreed multiplier.
Hydrotherapy and acupuncture
At the suggestion of his physiotherapist, Mr Noble has been attending hydrotherapy and acupuncture treatment on a weekly basis. I accept his evidence that these treatments make him feel better, improve the pain, and improve his sleeping and help with his constipation. The defendant submits that it ought not to have to pay for these treatments because in their joint report the orthopaedic experts say that there is no good scientific evidence to justify regular and formal physiotherapy/hydrotherapy/acupuncture. I disagree. In my opinion these treatments are reasonably required. I accept Mr Noble’s evidence that his weekly hydrotherapy and acupuncture sessions help with the pain and make him feel better generally. I also note that Mr Noble was advised at St George’s Hospital (Footnote: 1) to continue with hydrotherapy and his treating physiotherapist has given him the same advice.
Loss of earnings
Mr Noble has not worked since the accident and will not be able to do so for the rest of his life. He claims loss of earnings on the basis that but for the accident he would have developed both his flower and plant stall business at Fareham market and his building business. In the course of the trial he abandoned a claim for payments which he alleged would have been made to him by Mrs Stanton for helping her with her stall at Salisbury market.
Mr Noble’s case for loss of earnings is set out in a report dated 18 September 2007 by Mr Michael Mason, an accountant. Mr Noble operated the Fareham market stall for three weeks prior to the accident. During this period his turnover was £1,360, his cost of purchases was £917, and his expenses were £290, producing a profit before tax (pbt) of £153. After the accident the stall was run for 18 weeks by Mr Noble who employed two young men for the purpose. The turnover during this period was £10,275.
Mrs Stanton kept records of her own trading at Salisbury market. These show that her weekly takings on a Tuesday in the year 2003-04 were £572, which Mr Mason takes as a guide for what Mr Noble could have achieved at Fareham on a weekly basis. Mr Mason further assumes that Mr Noble would have run the stall for 45 weeks a year achieving a turnover of £25,000 pa. Taking the costs of sales and the expenditure incurred in the 18 week period the stall was run after the accident, Mr Mason calculates that a pbt of £6,600 was possible in the year-ended 31/8/04. This figure compares well with the pbt that is the product of multiplying the results for the 18 week period by 45/18 and making an appropriate upward adjustment to reflect the fact that two employees were running the stall during this time and not one and a downward adjustment to reflect the fact that the 18 weeks included the busy Christmas period but not some of the quieter weeks in the year.
So far, I accept Mr Mason’s approach and the figures he takes. But he goes on to assume that in the next four years, the profits of the Fareham stall would have grown annually by 15%. He bases this assumption on a rule of thumb which he says reflects the experience of the accountancy profession with start-up businesses. In my judgment, whilst some increase in profit can be reasonably assumed as the business becomes more established, there is no justification for assuming an annual increase in profits as high as 15%. I therefore propose to adjust Mr Mason’s figures by taking an annual increase of 8%, which means that the lost pbt figures for the years 2004 to and including 2008 are: £7,128; £7,698; £8,314; and £8,979.
Mr Mason has calculated the past losses in respect of the Fareham market stall up to 7 January 2008 and I propose to adopt the same cut-off date. On this basis, the time-adjusted figure for 2008 is £1,347.
The lost earnings on the Fareham Market stall net of tax and national insurance for the year ended 2004 are £3,527. Based on Mr Mason’s calculation of the tax and national insurance payable on the 2005 to 2008 earnings I shall deduct 28% from the adjusted pbt for each of the last four years to arrive at the net loss of these earnings.
As Mr Mason observes in para 8.3.12 of his second report, Mr Noble also lost £810 lost profits during the 18 weeks his stall was run on his behalf because Mr Noble had to employ 2 members of staff rather than one. Accordingly, I award Mr Noble £22,345 for his total past loss of earnings on the Fareham stall.
Mr Noble testified that he intended to work until he was 70 years and thought that, but for the accident, he would be able to do so, using sub-contractors where necessary. In my judgment, it is not likely that Mr Noble would have worked beyond the age of 65 on the market stall, even with the help of sub-contractors.
He is now aged 42. I was told by counsel that once I had determined the applicable retirement age, the appropriate multiplier would be agreed. It is agreed that the appropriate multiplier is 14.89. The multiplicand is the net loss of earnings for the year ended 31 August 2008, namely £6,465.
I turn to the claim for loss of earnings as a self-employed builder. The principal problem here is the state of the evidence as to Mr Noble’s earnings as a builder in the years before the accident. Mr Noble’s income tax returns for the years 99/00 and 00/01 declare income of £2,461 and £3,724 respectively, which Mr Noble admitted were understated figures. His return for 01/02 declared employed income of £2,610 and self-employed income of £8,465 and he admitted that the latter figure was also understated. A self-assessment tax computation dated 28 January 2004 for the tax year 2002-03 shows self-employed income of £19,008, of which Mr Noble says £15,000 (£13,000 net) was attributable to earnings as a builder.
Mr Noble relied on 7 quotations which he says he had made for building work which had been accepted by customers prior to the accident as evidencing the level of income he could have been expected to achieve as builder but for the accident. The total value of these quotations is £27,400. A number of these customers were friends or associates of Mr Noble and none, with the exception of a Mr Bowley, had had the commissioned work done following Mr Noble’s accident. Three of the customers gave evidence and the statements of three others were relied on as hearsay.
I am satisfied on the evidence that genuine quotations were made to and accepted by the 7 customers but it does not follow that Mr Noble has shown an irreducible annual minimum income from building work of £27,400. Accepted quotations do not have the same significance as duly executed and paid for work.
Mr Noble also said that he expected to get day work as and when he wanted it from Mr Bowley, but I find that this was too optimistic a forecast. I also find that Mr Noble would have spent no less than 40% of his time on his flower and plant business, which necessarily limits the scope of his building earnings. I make this finding because: (i) he told Mr Carew, an orthopaedic spinal surgeon, that he spent 60% of his time on his building work; and (ii) he told Mr Worlock, his expert orthopaedic surgeon, that he spent 30 hours a week helping Mrs Stanton with her market garden business.
On the other hand there is the undoubted fact that Mr Noble was capable of doing many of the building trades, including laying paved driveways, and there is reasonably good evidence in the form of a notebook written up by Mrs Stanton that in the year ended 31 August 2003 Mr Noble did building work for which he was paid £19,700. I also bear in mind that Mr Noble was working in a prosperous part of the country (Hampshire/Dorset) and that the figures for adult males in the construction industry in the Annual Survey of Hours and Earnings for 2003 to 2008 were between £23,065 and £27,276 (median) or between £26,376 and £30, 961 (mean).
Mr Noble contracted on a labour only basis but occasionally employed a young man to assist him on his building work. On the basis of information provided to him by Mr Noble, Mr Mason has estimated that the expenses incurred in earning £19, 700 in the year ended 31 August 2003 totalled £3,566, which is 18% of the turnover. And his estimates of expenses in the years 2004 to 2008 amount to about 22% of turnover (see Appendix 4.2).
Doing the best I can on the evidence available, I find that Mr Noble’s gross earnings from work as a self employed builder in the years 2004, 2005, 2006, 2007 and 2008 ending 31 August would have been £23,000, £24,150, £25, 357, £26,625 and £27,956. In my view the expenses can be estimated at 22% of turnover, so that the lost net income before tax for these years is £17,940, £18,837, £19,778, £20,767 and £3271, a time adjustment having to be made to the 2008 figure in view of the cut-off date of 7 January 2008. After tax and national insurance at the above rate of 28%, the figures are: £12,917, £13,562, £14,240, £14,952, and £2551 and I award these sums for past losses of building income.
The orthopaedic evidence is that if he had not been injured as he was, Mr Noble could have carried on doing building work until he was in his late 50s and thereafter could have done lighter work until he was 65. Mr Mason reduces the multiplicand by 15% for the period 60-65 years to reflect this. I think that this is too small a reduction in the light of the orthopaedic evidence and that the reduction should be 35%. Accordingly, I hold that: (i) the multiplicand until Mr Noble is 60 years for lost earnings as a self-employed builder is £15,700 (the net figure after tax for 2008 before making the time adjustment); and (ii) the multiplicand covering the period when Mr Noble is 60 to 65 years is £10,205.
Loss of congenial employment
Mr Noble was an energetic and hardworking man who enjoyed his work as a builder and motor mechanic, and would, I am sure, have enjoyed working on his market gardening business. He is accordingly entitled, in my view, to recover for loss of congenial employment. The question is: how much is the appropriate award? Mr McDermott submits that the award should be between £5,000 and £10,000. The defendant offered £5000 and I understand that this is the agreed sum. In any event this is the sum I award bearing in mind the fairly large award I have made for future loss of earnings.
The cost of care claim
Past gratuitous care
Apart from when she was in Australia in February 2007, Mrs Stanton has been Mr Noble’s principal carer, especially at night. She visited Mr Noble every day when he was in hospital immediately after the accident and looked after him when he was discharged. At this point, Mr Noble needed a lot of care because he was mobilising slowly. He was difficult and very demanding. Since then Mr Noble has been back in hospital on occasions, including the time in the summer of 2004 when he was operated on by Mr Bircher. In time, a routine was established, with Mrs Stanton bringing Mr Noble tea and toast in bed in the morning, helping him get up, wash and shave, use a foot spa and when necessary assist him with the TENS machine and heat pads. During the day, Mrs Stanton made Mr Noble’s meals and brought him drinks. On bad days when Mr Noble was in a lot of pain, he required considerably more care. Mrs Stanton has also provided a lot of care at night as is plain from her evidence and a diary she kept. Thus she had to deal with Mr Noble’s urine bottle and often had to change the bed and calm Mr Noble down following an episode of incontinence or when he had a night sweat caused by a nightmare and/or acute pain. These frequently disturbed nights have proved to be exhausting. Mrs Stanton told me that she is at the end of her tether and I believe her.
In January 2005, Mr Noble began employing a “buddy” to help him get around and participate in activities such as motor mechanics. First there was George who worked 9 hours a week rising to 5 hours a day, 5 days a week from January 2005 to August 2005. Then Ben was employed to come from 9.00 am to 5.30 pm Monday to Friday from June 2006 to May 2007. And finally, Paul (who remains in post) was engaged in May 2007 to come 5 days a week. These buddies took over the care tasks that Mrs Stanton had previously carried out during the day.
It is not easy to assess the number of hours per day Mrs Stanton has provided care. The care experts called by the parties, Mrs Maggie Sargent (MS) for Mr Noble and Mrs Gillian Conradie (GC) for the defendant, differ somewhat on the allowable hours. Their respective positions are as follows: (i) 2.9.03 –6/7.11.03 -- agreed at 6 hours; (ii) 7/8.11.03 – 28.2.04 -- MS 10 hours a day, GC 5 hours a day; (iii) 1.3.04 –31.5.04 -- MS 6 hours a day, GC – 5 hours a day; (iv) 1.6.04 – 22.8.04 -- MS 8 hours a day, GC – 5 hours a day; (v) 23.8.04 – 2.12.04 –MS 8 hours a day, GC – 24 hours a week; (vi) 3.12.04 – 31.1/4.5.07 – MS 8 hours a day reducing to 36 hours a week when buddy employed, (Footnote: 2) GC – 2 hours a day.
On the basis of the evidence I heard from Mr Noble, Mrs Stanton and the diaries of Mrs Stanton and of the carer who looked after Mr Noble when Mrs Stanton was in Australia (Carli Butler), I accept Mrs Sargent’s figures for the hours Mrs Stanton has spent caring for Mr Noble.
Mrs Stanton is entitled to proper recompense for her services. What is the hourly rate that would secure proper recompense? Mrs Sargent contended for an aggregate rate that reflected anti-social hours and week-end working, whilst Mrs Conradie was of the view that the appropriate rate was the National Joint Council for Local Government Services for a Home Help/Home Carer -- New Spinal Point 8 rate.
In my judgement, given that the care, although onerous, did not require any training and was provided by a person who lived with the person cared for, the appropriate rate is the Spinal Point 8 rate. Mr McDermott urged on me the decision of Teare J in Massey and Tameside & Glossop NHS Trust [2007] EWHC 317 (QB) in which a rate similar to Mrs Sargent’s rate was adopted where the gratuitous care was provided by a mother of a child with dyskinetic cerebral palsy with dystonia. That decision, however, was very much dependent on its facts – the child’s needs were much more serious than Mr Noble’s – and I decline to follow it.
It is usual for a discount to be applied to a gratuitous care claim after the multiplication of the number of hours by the applicable rate. There is no fixed rate of discount. In Evans v Pontypridd Roofing [2002] PIQR 5, May LJ described 25% as the normal rate of discount. In my judgement, that is the rate that should apply in this case.
Mrs Stanton must also give credit for any Carer’s Benefit and Job Seeker’s allowance received. As to Incapacity Benefit, I agree with Mr McDermott that Mrs Stanton need not give credit for this because this was received not to compensate her for caring for Mr Noble, but to compensate her for the ill-effects caused by providing the care.
Past non-gratuitous care
This claim relates to the cost of the three buddies identified above. As I understand it, this claim is agreed in the sum of £35,000. If I am wrong about this and the claim is still disputed, I decide this issue in favour of Mr Noble for the following reasons.
I have described Mr Noble’s psychiatric disorder earlier in this judgement and expressed the conclusion that it is likely endure for a long time, quite possibly to end of his life. Dr O’Connell had no doubt that the buddies had provided a valuable role in helping Mr Noble deal with his psychological problems and I accept his evidence. Accordingly, I find that the buddies provided care for which the defendant must pay.
Further, I accept Mr Noble’s evidence that the buddies were paid the sums claimed in the Amended Schedule of Loss. The underlying rates were in my view reasonable. Accordingly, if the past buddy cost claim has not been agreed, I award Mr Noble the sums paid to the buddies down to the present time.
Future Care
Outside help or Mrs Stanton?
Mr Noble has been most fortunate as I am sure he appreciates in having been cared for Mrs Stanton. However, Mrs Stanton does not wish to continue to be his carer. She is exhausted and wants to get on with other aspects of her life. She is of course perfectly entitled to adopt this attitude. The consequence is that Mr Noble’s future care needs must be met by outside support workers
The role and province of the care experts
The expertise of Mrs Sargent and Mrs Conradie gives them standing to advise the court as to: (i) the needs of Mr Noble, given his state of disablement, including his incontinence problems and his psychological disorder; and (ii) how those needs can be met and at what cost. Given their experience they were entitled to offer their opinions on Mr Noble’s needs based on their own assessment of his disablement, but ultimately the degree of disablement generating those needs and its prognosis is a matter for medical opinion.
Each expert made her own assessment of Mr Noble’s disability based on what they saw and were told by Mr Noble and Mrs Stanton and the information contained in the expert medical reports. Mrs Sargent assumed the prognoses given in the reports served on behalf of Mr Noble, including Dr Moffat’s view that Mr Noble would have a continuing need to be attended by a buddy. She properly accepted in cross-examination, however, that what the future held for Mr Noble as far as his incontinence and sleep disturbance problems were concerned was a matter for the doctors and ultimately for the court.
Mrs Conradie gave evidence based on her own observations of Mr Noble and an impressively detailed and thorough analysis of the expert medical reports. In her view, Mr Noble was mostly independent in respect of personal care and his problems with pain and incontinence and his psychological state would improve after he had been on the pain management course, accepted the advice of the urologists on the measures that could reduce and possibly resolve his incontinence, and continued to be treated by Dr Moffat. In her opinion, a buddy was appropriate only for the next 18 months to 2 years after which Mr Noble should be much more independent and require no assistance for outings and relatively little assistance for his personal care needs. She also thought it was important that Mr Noble did not develop a dependency on a buddy because this would inhibit rather than promote progress towards greater independence. In Mrs Conradie’s view, Mr Noble needs a support worker 6 hours a day for the next 2 years (2 hours in the morning and 4 hours in the afternoon and evening). No support worker was required to remain in the house overnight. After this 2 year period, she thought Mr Noble would need support 3 hours a day.
Mr Noble’s day care needs
In my judgement, Mr Noble needs a buddy in the long term and not just for the next two years. Dr O’Connell said that it is important that Mr Noble continues to have a buddy to help him get back into society and to help him manage his emotions; indeed he went so far as to say that Mr Noble’s psychiatric condition would deteriorate if there were no buddy. Dr Moffat was of the same opinion. I accept this evidence in preference to Mrs Conradie’s assessment.
As I have already said, I am satisfied that Mr Noble’s psychiatric disorder will persist over the long term. Indeed, it is distinctly possible that it will persist for the whole of his life, but there is a possibility that with the help of a buddy and Dr Moffat, the disorder will eventually improve to the point that Mr Noble will not need a buddy, the more so if his incontinence problems improve. Even so, on this scenario he will still need in my opinion 4 hours care a day. I accordingly propose to reduce the multiplier for daytime care to 20.
A buddy will be able to provide Mr Noble’s care day time care needs. Mrs Sargent said that Mr Noble would require 8 hours’ care a day to cover the morning routine, help with domestic chores, help with outings and buddy activities. I think that that is an overestimate. In my judgement, Mr Noble will require 6 hours of care a day until he is 70. Thereafter, I agree with Mrs Sargent that he will need a second carer for 28 hours a week. It follows that the multiplier for the care claim will be 19.22 x 20/25.05 for the period until Mr Noble attains the age of 70 and 4.65 for the period thereafter.
Night time care
Mr Noble’s problems at night are a combination of incontinence and disturbance from nightmares and pain, often accompanied by heavy sweating that leaves him and the bed soaking wet. Heavy sweating and sleep disturbance is something that has been observed by Dr O’Connell in ex-service men who have been traumatised. In a telling passage in his evidence he told me that the men spoke of the indignity they suffered from night sweats and in the nursing home where they were housed, the one piece of machinery constantly being used was the washing machine, washing sheets and pillows constantly. In my judgement, Mr Noble’s night time problems are likely to continue over the long term, possibly for the rest of his life. However, there is a possibility that these problems will resolve over time if he follows the advice of the urologists and if his psychiatric disorder ameliorates. In these circumstances, I think the appropriate multiplier should be 20.
How many hours of care a night does Mr Noble need? I accept Mrs Sargent’s proposal that there should be nightly shifts of 8 hours for which the carer would be paid for 4 hours. I also agree that both the night time and the day time care should be costed on basis of 59 weeks in a year to take account of ordinary holidays, bank holidays and sick pay.
As to the appropriate rate, there is little difference between the experts. Mrs Sargent proposes: (i) for day time care £9.50 per hour on weekdays and £11.00 on weekends; and (ii) for night time £44.16 for an 8 hour shift, rising to £55.00 for weekends, both with an increase to take account of National Insurance (12.8%) and other expenses such as advertising and training. Mrs Conradie takes £9.50 per hour and adds a flat uplift of 27%. In my judgement, Mrs Conradie’s rate carries a risk of undervaluing likely on-costs and I therefore propose to award the costs of Mr Noble’s care on the basis of Mrs Sargent’s costings.
Case management
Mrs Conradie thought that Mr Noble needed 70 hours a year of case management for 5 years during which period, he will be undergoing treatment and will need to have buddy support organised for the first two years. In her opinion, Mr Noble can organise his affairs reasonably well.
Mrs Sargent was of the opinion that Mr Noble’s care will not be easy to manage because it will range over pain, buddies and psychological treatment. In her view, Mr Noble needed: (i) an increased of 20 hours of case management in the first year after trial; and (ii) thereafter, 120 hours of case management a year at an annual cost of £79.465.06.
I am not persuaded as to (i) and as to (ii), I think the appropriate level lies between two, although nearer Mr Conradie’s figure than Mrs Sargent’s since I am satisfied that Mr Noble is capable of doing more of the organising than Mrs Sargent gives him credit for and some discount must be allowed in recognition of the possibility that there will cease to be a need for a buddy. Accordingly, I award 75 hours’ case management a year for the rest of Mr Noble’s life at the annual cost estimated by Mrs Sargent.
Mr Noble’s accommodation claim
Mr Noble does not ow
n a property in which he could continue to live with Mrs Stanton and which is suitable, with or without adaptations, to meet his needs as a person with the disabilities described above. Mr Noble is accordingly entitled to recover in respect of the cost of acquiring accommodation suited to his needs and the cost of such adaptations thereto as are required to meet those needs.
Mr Noble’s entitlement in respect of the acquisition cost of suitable accommodation is interest at 2.5% pa times a multiplier of 25 on the acquisition cost less any credit he must give for the value of the accommodation he would have continued to occupy but for the accident: see Roberts v Johnstone [1989] QB 878. So far as the cost of necessary adaptations is concerned, he is entitled to this in full without deduction, although he must give credit for the increase in the value of the property that would result from the adaptations.
Mr Noble relies on the expert evidence of Mr Thomas Wethers MRICS who is an expert on the accommodation needs of the seriously disabled. Mr Wethers has produced a number of reports, four of which are pertinent. In the first of these (dated 27 September 2006) he expresses the view that a suitable four bedroom bungalow (“the generic property”) could be acquired for between £330,000 and £390,000 in the general area desired by Mr Noble and could be suitably adapted at a cost of £81,590.83. No objection is or could be taken to the adaptations Mr Wethers proposes in this report.
Mr Wethers’ second report (dated 21 May 2007) focuses on a particular property that Mr Noble wished at that time to purchase for £500,000, 23 Ringwood Road, Ferndown, which has a rear garden of just under an acre. In this report Mr Wethers estimates the cost of necessary adaptations to this property to be £32,648.81. In the event, Mr Noble could not raise the purchase price because the defendant declined to make an interim payment and Mr Noble’s offer lapsed.
Mr Wethers’ third report (dated 6 December 2007) focuses on another specific property, Firs View, in Wimbourne, which sits on 2.2 acres. Mr Noble’s offer of £565,000 has been accepted and this property remains available to be purchased by Mr Noble if he proceeds with the transaction. In Mr Wethers’ opinion, suitable adaptations to this property would cost £218,527.30.
Recently, the property at 23 Ringwood Road has come back onto the market and on 14 January 2008 Mr Wethers produced a fourth report in which he adjusted upwards the cost of necessary adaptations to this property from £32, 648.81 to £279,827.90.
Mr Wethers accepted in cross-examination that 23 Ringwood Road and Firs View comprise accommodation and grounds that are in excess of what Mr Noble needs and therefore in excess of the generic property. He sought to justify his amendment to the cost of necessary adaptations to the former property by saying that when he produced his second report on 21 May 2007 he had not had available the Occupational Therapy and Care Reports. The principal point he sought to make was that in the light of those reports, Mr Noble needed more space to allow for his use of a wheelchair inside the house. It is true that the OT and Care reports make it clear that Mr Noble will be in his wheelchair in his home most of the time he is up whereas, in his earlier report, Mr Wethers states that he was told by Mrs Stanton that on a bad day Mr Noble would use his wheelchair all day, but on a good day he would use his crutches. Mr Wethers also said in his earlier report that the size of the bedroom and bathroom should incorporate a turning space of 1.2m (4’.0’’) to allow occasional wheelchair access and room for the use of elbow crutches or a walking frame.
I find it hard to accept that the fact that Mr Noble will be in his wheelchair most of the time rather than for some of the time can account for more than a relatively modest increase in Mr Wethers’ first adaptations figure of £32,684. In his revised estimate, Mr Wethers has also included the cost of a conservatory and workshop (£67,640, inc VAT and architect’s fees) which I do not regard as being necessary to meet Mr Noble’s needs arising from his disablement.
It is not easy to arrive at an appropriate figure for the cost of suitable accommodation and adaptations. Firs View’s grounds are much larger than are necessary and it has five bedrooms, rather than the four possessed by the generic property (one each for Mr Noble and Mrs Stanton, one for a carer and one guest room). Inevitably, therefore, there must be a substantial reduction from the £565,000 offer price of say £75,000. Moreover, the estimated adaptation costs are materially excessive because they include £43,360 for a conservatory which is not reasonably necessary to meet Mr Noble’s needs and a proposal to increase the ground floor area by 46.1 square metres to allow for the creation of a very large bedroom and ensuite bathroom for Mr Noble costing £38,462 and a computer room costing £2,360, when rooms of this size are not in my opinion reasonably necessary to meet Mr Noble’s needs.
As for 23 Ringwood Road, Mr Noble no longer wishes to live here, its site is considerably larger than the generic property, and the revised estimated cost of adaptations is excessive for the reasons I have given.
What of the generic property? Ex hypothesi, this a suitable property in terms of size and basic characteristics and the proposed adaptations, estimated to cost £81,590 are reasonable. Both Mr Noble and Mrs Stanton said in evidence that they had spent a considerable amount of time looking for a suitable property but had not found anything. However, Mr Wethers would not have postulated the generic property if he had not thought that such a property could be acquired in the broad area in which Mr Noble and Mrs Stanton are interested and I think a reasonably sustained search might well throw up a property of the sort Mr Wethers had in mind. I therefore propose to take Mr Wethers’ figures for the cost of the generic property as set out in his report dated 27 September 2006 as my basic guide but with the following adjustments: (i) the cost will be the upper end of Mr Wethers’ bracket (£390,000) increased by 7% to reflect the difficulties Mr Noble and Mrs Stanton have had in finding a suitable house in Mr Wethers’s price range, giving £417,300; and (ii) the cost of adaptations, including the cost of an Apres body drier and eye level oven and hob, will be rounded up to £90,000. There is no evidence that the proposed adaptations will add to the value of the property. Accordingly, ignoring for a moment the question of any credit being given to reflect what if anything Mr Noble would have paid to continue to live in Mrs Stanton’s house, Mr Noble is entitled to 2.5% of £417,000 x 25, plus £90,000.
Mr Hogarth argues that Mr Noble should give credit for a deemed contribution he would have made to the couple’s expenses if the accident had not happened and Mr Noble and Mrs Stanton had married and continued to live in Mrs Stanton’s house as they planned to do. Otherwise, he said, there would be overcompensation, for apart from anything else, Mrs Stanton would be living in the accommodation to be acquired entirely free whilst at the same time having at her disposal her substantial four bedroom property.
With a degree of reluctance I cannot accept Mr Hogarth’s submissions. The claim is Mr Noble’s not Mrs Stanton’s and there is no legal basis for saying that Mr Noble should give credit for a benefit enjoyed not by himself but by another; see Iqbal v Whipps Cross University Hospital NHS Trust [2007] LS Law Medical 97. Moreover, I think there is a real chance that Mr Noble and Mrs Stanton might not stay together, so changed has their relationship become as a consequence of the accident.
I also decline to find as a matter of fact that any contribution Mr Noble would have made to joint living expenses if the accident had not happened would have been earmarked by the couple as rent. I conclude therefore that if the accident had not happened Mr Noble and Mrs Stanton would have lived as man and wife in Mrs Stanton’s house and Mr Noble would not have paid his wife rent, although he would have contributed to the household expenses.
Is Mr Noble to be deemed to charge Mrs Stanton rent in order to mitigate his losses? In my opinion, he is not, both because there is a real chance that he and Mrs Stanton will not stay together and because, although Mr Noble is recovering a substantial sum for the cost of outside care, I am satisfied that Mrs Stanton will continue to be of assistance in a range of small of matters such that it would not be reasonable to charge her rent for continuing to live with Mr Noble.
Mr Hogarth cited the decision of HHJ Macduff in Lewis v Shrewsbury NHS Trust (29 January 2007) where it was held that parents who lived in accommodation bought by their injured child should give credit against their gratuitous care claim for the rental value of their home which they intended to let. In my judgement, this decision is distinguishable from the instant case because here there is a real chance that Mrs Stanton might cease to live with Mr Noble in accommodation acquired by Mr Noble and there is no evidence that Mrs Stanton is planning to rent out her home which is currently occupied by one or more of her children.
Accordingly, I award the sums specified in paragraph 104 above. Mr Noble also claims: (i) the likely incidental relocation costs and the ongoing running costs associated with the purchase of Firs View; (ii) a one-off cost of £10,000 to cover adaptations to the houses of friends and family to allow him to visit more easily.
It follows from the approach I have adopted in assessing the Roberts v Johnstone claim that Mr Noble does not stand to be awarded costs incidental to the purchase of Firs View; instead, if incidental costs are recoverable they will be those associated with the purchase of the generic property as set out in paragraph 3.03 of Mr Wethers’ report dated 27 September 2006. No issue was taken with these costs when Mr Wethers was cross-examined and I award them to Mr Noble. The defendant also made no challenge in the course of the trial to the one-off claim for £10,000 and I award this sum too, on the basis that such expenditure is needed to allow Mr Noble to have the benefit of an important aspect of his social life that existed before the accident.
Holidays
Prior to the accident, Mr Noble and Mrs Stanton had enjoyed holiday cruises in the Caribbean. The seasonal nature of their employment/businesses allowed them to get away in the winter after Christmas when the weather in the Caribbean is at its best and they were well placed to take advantage of last minute deals at heavily discounted prices.
In the light of his injuries, Mr Noble has been advised not to fly. He and Mrs Stanton went on a Caribbean cruise holiday in 2006 which both described as a disaster. Mr Noble found that the movement of the vessel aggravated his pain and it was difficult to move between decks in his wheelchair. However, he says that such is his affection for the Caribbean as a holiday destination he wants in future to cruise to a Caribbean island, stay there for a period and then sail home. And on his behalf it is contended that he is entitled to the additional costs of taking such a holiday because this would be to put him back in the position he occupied before the accident. On the basis of a multiplier of 25.05, the total claimed under this head of loss is £364,427.40.
In my opinion the principle that a person negligently injured by another is entitled by way of damages to be put in the same position he was before the injury does not mean that he should be able as closely as possible to take holidays of the same type and in the same location as before the accident. In my view, the law takes a broader view of the measure of recovery than that implicit in Mr Noble’s claim. Thus I think that Mr Noble should be put in the position that allows him at no material additional cost to travel once a year to a warm and scenic location and stay there for a couple of weeks. Mr Noble cannot fly but he can travel by TGV to the south of Europe where the weather is warm and there is a wide choice of scenic, relaxing and pleasurable locations.
In my judgement. the recoverable additional costs for such a holiday are:
The travel and lodging costs of two carers, one for the day and one for the night (Footnote: 3), say £4,000 x 25.05 = £100,200.
The extra costs of Mr Noble and Mrs Stanton having to stay in a hotel in the centre of town, such hotels being more likely to have the space and facilities appropriate for disabled guests, say £750 x 25.05 = £18,787.50.
Mr Noble also claims the additional cost of weekend breaks. In my opinion, as a matter of principle, this is a good claim. I think it is reasonable that Mr Noble be allowed three weekend breaks a year. Counsel for Mr Noble submit that the increased cost per weekend is likely to be in the region of £500 to £1,000. I think the appropriate figure is £500 per weekend and therefore award £1,500 x 25.05 = £37,575 under this head of claim.
Future aids and equipment
Walk-in bath
Mr Noble has not had a bath since the accident. He has been using a specially adapted shower and when he met the care and occupational therapists experts neither he nor the experts raised the question of him having a specially adapted bath. Nor does Mr Noble say anything about wanting to use a bath in any of his witness statements. Nonetheless, he seeks the cost of a walk-in bath, this being an item identified in the report of the occupational therapist called by Mr Noble (Mrs Ho) who expresses the view that a bath should help with his pain.
In my judgement, he is entitled to recover this cost. He has been living in accommodation on a temporary basis without a usable bath awaiting the end of this litigation. I do not infer from the fact that he has not agitated for a bath or that there was no mention of an adapted bath when he met the experts that he does not want a walk-in bath and would not purchase and use one if awarded the necessary funds to do so. Most people enjoy a bath and I accept that it might help ameliorate the serious and fairly constant pain which he has to endure.
Mrs Conradie did not recommend a sit-in bath, saying that it would not afford the usual pleasant experience a bath gives because Mr Noble would have to sit in it filled with water and as the water drained away. However, it is agreed that Mr Noble should have an Apres Shower Drier and this would make the bathroom very warm when he takes a bath.
I accept Mrs Ho’s evidence that the capital cost of such a bath is £2,000 and that it will need to be replaced every 10 years and will involve annual maintenance costs £100.
Tempur mattress
I reject this claim. Although Mrs Ho recommended a Tempur mattress on the basis that it moulds to the body of the person sleeping on it, which she thought would assist Mr Noble with his pain, the evidence was that such a mattress is not recommended to be used on the type of profiling bed that Mr Noble has. I also accept Mrs Conradie’s evidence that Mr Noble would find that a Tempur mattress makes him hot and sweaty
Tempur overlay
Mrs Ho was of the view that this item would assist on making beds used by Mr Noble when on holiday more comfortable. I accept this evidence and award Mr Noble the cost involved, namely £200 for the initial purchase, with replacement every 5 years.
Portable hoist
Mr Noble is a heavy man. If he falls, it could be difficult to get him up again without the assistance of a number of people, yet it is very likely that there will not be sufficient people on hand to provide such assistance. Hence this claim for a portable hoist. The care experts were agreed that if there were a real risk of him falling regularly, such a hoist would be necessary. The question is whether there is such a risk. Mrs Conradie told me that when she asked Mr Noble whether he had fallen in the past, he told her that he had once fallen off a shower stool when it had taken three people to get him on his feet. Mrs Stanton says in her witness statement that Mr Noble has fallen on further occasions and that she told Mrs Conradie this. She also says that after Mrs Conradie’s visit Mr Noble fell again in the shower and pulled the grab rail off the wall. Mrs Conradie made notes of her meeting with Mr Noble and Mrs Stanton. If Mrs Stanton had told her about further falls, I am sure that this would have been recorded in her notes. In the circumstances, I do not accept that Mr Noble had fallen before Mrs Conradie’s visit other than on the occasion mentioned in her notes. On the other hand, I accept Mrs Stanton’s evidence that Mr Noble fell again in the shower after Mrs Conradie’s visit.
In my judgement, the evidence that Mr Noble has fallen twice in the shower over a period of 4 years does not disclose that there is presently a sufficient risk of falls to justify here and now the purchase of a portable hoist but I think on the basis of Mrs Conradie’s evidence there will be such a risk after Mr Noble is 65 years. I propose therefore to award half the cost of this item.
Adjustable height wash basin
This item was not included by Mrs Ho in her list of Mr Noble’s equipment needs. Instead, it is itemised in the adaptation works recommended by Mr Wethers for Firs View. Mrs Conradie told me that in her view, Mr Noble did not need an adjustable height wash basin. I accept her evidence and therefore reject this claim.
Burglar alarm and fire extinguishers
I am not satisfied that Mr Noble’s needs justify these items. Mr Noble and Mrs Stanton may have been well advised to install a burglar alarm even if Mr Noble had not been injured. I do not think that the consequences of the accident, both in terms of Mr Noble’s disability and in terms of the extra equipment he will require in the house fundamentally change the situation. A burglar alarm would be well-advised but it is not a need consequential on the accident. Nor is there a sufficient need for fire extinguishers, for I can see no material increase in the risk of a fire caused by the equipment that will have to be in the house to assist Mr Noble with his needs.
Eye level oven and hob
I agree with Mr Wethers’ opinion that Mr Noble, who likes cooking, needs an oven and hob at eye level when he is seated in his wheelchair. Mr Wethers estimates the total capital costs of these items to be £3, 363.61 and his figures have not been challenged. Accordingly, I award this sum to Mr Noble.
No claim is made for the replacement costs of these items and accordingly I say no more on this subject.
Transport
The claim for a Chrysler Voyager Entervan
Mr Noble drives a Land Rover which has been adapted to automatic transmission. He drives this vehicle when he goes off-roading. He also drives a Chrysler Voyager which he bought following an assessment at the Mobility Advice and Vehicle Information Service (MAVIS) in October 2005. In the back of the vehicle is a hoist used to lift Mr Noble’s wheelchair into the back. Mr Noble drives the vehicle from the front seat. It has an automatic boot and all the rear doors are automatic.
It is common ground that the hoist is unsatisfactory. The wheelchair sways as it is lifted and has to manoeuvred to enter the vehicle at the right place. This presents difficulties for Paul the buddy; the more so for Mr Noble.
In my judgement, it is plain that Mr Noble is entitled to another vehicle which will allow the wheelchair to be loaded without these difficulties. In so deciding I am satisfied that Mr Noble will wish to drive the replacement vehicle regularly himself and will not invariably leave this task to his buddy.
Mr Noble’s mobility consultant, Mr Roake recommends a Chrysler Voyager with an Entervan conversion which allows a person in a powered wheelchair to enter the vehicle from either side and to drive whilst seated in the wheelchair. Mr Noble will also need a new wheelchair (a Lifestyle Chair) which will give him adequate headroom inside the vehicle.
The defendant’s mobility expert was a Mr Short whose report was before the court but who was not called to give oral evidence. Mr Short recommends a cheaper version of the converted Chrysler Voyager and wheelchair but I award Mr Noble the cost of the vehicle and wheelchair recommended by Mr Roake because this vehicle allows access from both sides and the Lifestyle wheelchair has been tried and tested by Mr Noble and found to be entirely satisfactory. I also award Mr Noble £5,765 in respect of .the cost of hand controls for the Chrysler Voyager.
Mr Roake suggests that the vehicle and the hand controls will need to be changed every 5 years. I agree, but I reject Mr Noble’s claim for additional depreciation because I am satisfied that given the earnings I have found he would have achieved if he had not been injured he would have purchased at a cost in the range of a Chrysler Voyager. Moreover, Mr Noble will not be paying for the motor bikes he would have had but for the accident.
The claim for a Pride Ranger scooter and a Q Pod
Mr Noble has a Pride Ranger scooter which he uses (in particular) for taking his dog for a walk along paths in a local wood. It has a long wheel base and so is very stable. The dog travels with Mr Noble up on the scooter until the woods have been reached. Mr Noble claims for the cost of replacing this vehicle. Mrs Conradie was of the opinion that the new powered wheelchair which Mr Noble is going to have in any event would serve perfectly well as a means of taking the dog out in the woods and would have the advantage of being more comfortable. However, if it is used for dog walking, the wheelchair will be become dirty and Mr Noble has become accustomed to using the scooter rather than his wheelchair when out in the woods. In my judgement, Mr Noble needs to get out with his dog and a replacement scooter is a reasonable way of providing for this need. Accordingly, I award him the cost of a new Pride Ranger.
A Q Pod is a sort of sand buggy well suited for use on a beach. Before the accident, Mr Noble used to like walking on the sandy part of the beach. He now cannot gain access to this part of the beach because neither his new wheelchair nor his Pride Ranger is suitable for use on such terrain. Mr Noble therefore claims for the cost of a Q Pod. There was no evidence as to how often he would want to go onto the sand at the seaside. My distinct impression is that a visit to the beach would be an occasional outing, in contrast to walking the dog in the woods which is a regular, almost daily activity. For this reason, I think that the provision of a Q Pod is not reasonably required to meet Mr Noble’s needs and accordingly I refuse this claim.
Mr Noble also has a claim for additional mileage costs resulting from the fact that because of the accident he has greater reliability on motor transport than he otherwise would. The justification for this claim is set out in paragraph 298 of Mr McDermott’s closing submissions. I accept the contentions there advanced and award the sums claimed for additional mileage.
Mr Noble is also entitled to the additional insurance costs arising from having to insure the buddy to drive. He is also entitled to the increased cost claimed (£650) for servicing and maintaining his (not Mrs Stanton’s) vehicles on the basis that before the accident he was able to do and did do this work himself, but now cannot do so. However, I refuse his claim for additional insurance costs due to the size of the Entervan because I think he bought a vehicle in a similar insurance range if he had not been injured and would have achieved the earnings I have awarded him.
Mr Noble claims for AA or RAC membership on the basis that pre-accident, he could have fixed any problem himself but now he will be unable to do so and also will not be able to continue a journey on public transport. I think this is good claim and I award the sums he seeks in respect of it.
Future electronic aids and information technology
This claim was supported on behalf of Mr Noble by Mr Stephen Martin who is an expert in the field of developing and supplying technological devices for people with severe disabilities.
Mr Martin recommends that Mr Noble should have: a motorised front door with remote lock release to allow him to enter his house in his wheelchair; an intercom and door entry system which can be accessed from all parts of the house and garden; remote control mains sockets for table lamps, cooling fan and similar devices because of Mr Noble’s difficulties in bending down and reaching; remote control light switches in the bedroom and living room; motorised windows in the living room, bedroom, kitchen and bathroom; motorised curtains in the living room and bedroom; and multifunction remote control transmitters fixed where appropriate to ensure availability when needed. In my judgement, all these recommendations are needed to allow Mr Noble a level of independence and function that will approximate to that he enjoyed before the accident. I am also persuaded that if awarded the costs of these items, Mr Noble would spend the money implementing these recommendations made by Mr Martin.
Mr Martin also supports a claim for the cost of a computer system, consisting of both a lap top and a desk top. The justification he offers for this claim is: “The modern computer offers people with disabilities many useful facilities which help mitigate their difficulties.” However, he does not say how in practice or at all a computer would assist Mr Noble with the difficulties that arise from his disablement. No doubt a computer is a useful piece of equipment, but unless a need for a computer arising out Mr Noble’s injuries can be demonstrated, there is no proper basis for the claim, and in my opinion no such need has been established. I also have considerable doubt whether Mr Noble is interested in using a computer. But even if he is, his needs are not such as to justify his claim for this item.
Accordingly, I award all of the costs itemised in Mr Martin’s report except for those listed under the heading Computer Equipment. For the avoidance of doubt I make it clear that I do not award Mr Noble the cost of a motorised back door or of an electric gate.
Gardening and DIY
Although I have only allowed 6 hours a day for a buddy, I am satisfied that this is sufficient time for all DIY jobs and gardening that Mr Noble would have undertaken but for the accident to be done. Accordingly, I do not allow anything under this head of claim.
Increased clothing costs
It is claimed that increased washing due to incontinence will increase the cost of clothing. I reject this claim because I am not satisfied that incontinence accidents will lead to the need to replace the clothes in question more often than would otherwise be the case. These days, it is not at all uncommon for underwear to be worn for one day only and then washed.
Future management of the award
Mr Noble suffers somewhat from memory loss and lapses in concentration. However, I have no doubt that he is an intelligent, shrewd man who thinks clearly and who will have well considered ideas as to how the damages awarded to him ought to be managed. I also think he will get a certain amount of general help on managing the award from the case manager running his care regime. In my judgement, it is as he gets older that Mr Noble will have a real need for help on management issues. The parties have agreed £500 pa but cannot agree the multiplier. In all the circumstances of this case, I think the multiplier should be 15.
Lump sum rather than periodic payments
Under r. 41.6 CPR the court must consider whether periodical payments or a lump sum is likely to be the more appropriate form for all or part of an award of damages. In my judgement, as will be evident from the approach I have adopted above to the assessment of damages for future losses, the appropriate form of the award in this case is a lump sum. I say this because both sides prefer a lump sum award to periodic payments and a lump sum secures to Mr Noble certainty, a clean break and the provision of capital with which to fund the full purchase price of a house and to meet unforeseen events or sudden increases in need.
These considerations may have had to give way to a periodic payment award if the court had had power to review periodic payments in light of any significant improvement in Mr Noble’s psychiatric condition and/or incontinence problems. However, such a power exists only in respect of proceedings begun on or after 1 April 2005 (Footnote: 4) and the instant proceedings were begun on 1 July 2004. I have accordingly awarded damages for Mr Noble’s future losses on a lump sum basis.
Conclusion
It is to be hoped that following the handing down of this judgement the parties will be able to agree the final award of damages to be paid to Mr Noble. Should this not prove possible, both sides will have liberty to apply.