Ali v Caton & Anor

On 30 January 2006 Jubair Ali was struck by a car being driven at about 50 mph by the first defendant. He suffered a very severe brain injury as well as significant orthopaedic injuries. These proceedings were commenced on 30 January 2009 against the first and second defendants. The first defendant has taken no active part in the proceedings: for simplicity I shall refer to “the defendant” throughout unless it is necessary to discriminate between the first and second defendants. A trial of the issue of liability was conducted in December 2011, but the issue was compromised before judgment was given on the basis that the first defendant was negligent and that 80% of the responsibility for the accident should be apportioned to him.

This judgment arises out of the trial of the issue of quantum which was held over 11 days in December 2012. The heads of claim are those that are conventionally advanced in a claim relating to a very severe brain injury, but the trial has given rise to complex issues of fact and medical opinion. The central issue to be determined by this judgment is the extent to which Jubair suffers and will continue to suffer lasting consequences attributable to the accident. The claimant’s case is that the brain injury has had and will continue to have serious consequences for his ability to lead an independent life; the orthopaedic injuries leave him with a permanently symptomatic back; and both the brain injury and the back injury put him at risk of further injury. The defendant’s case is that Jubair has been consistently malingering: it asserts that any ongoing cognitive defects that he now has are mild and that, once the litigation is over, he will be motivated to function and will function at a far higher level than he has exhibited thus far. As a result of this dispute on the central issue, the parties are far apart on the subsidiary (but financially important) questions concerning (a) whether Jubair will work and what his residual earning capacity may be, (b) whether Jubair will marry, and (c) what level of care and support Jubair has required and will require in the future, whether that care and support is to be provided by family (including a putative spouse) or by professionals.

Although the defendant’s arguments are detailed and will require extensive consideration later in this judgment, there are four major strands upon which the defendant relies, which bear mention at the outset. First, after the accident, Jubair attended Newham College for further studies between September 2007 and July 2009. The Defendant submits that this shows a level of cognitive performance and motivation which is inconsistent with the case being advanced by the Claimant. Second, the expert neuropsychologists (Dr Powell and Dr Walton) administered psychometric tests (Footnote: ¹) that are designed to reveal whether or not a patient is acting to the best of his abilities or whether he is deliberately exaggerating his difficulties. Jubair consistently returned results which strongly indicate that he was deliberately exaggerating his difficulties. Third, the Defendant submits that Jubair’s performance on a day to day basis is inconsistent with, and worse than, his performance when being assessed over a period of months in the course of residential rehabilitation at Queen Elizabeth’s Foundation for Disabled People at Banstead, a recognised centre of excellence. Fourth, and most strikingly, the Defendant relies upon evidence that on 9 February 2012, Jubair of his own volition and initiative, took the UK Citizenship Test and passed it. The Defendant submits, with support from experts called on behalf of the Claimant as well as those called on behalf of the Defendant, that for Jubair to have passed the test, whether fairly or by cheating, is inconsistent with the level of cognitive disability that he has displayed on a day to day basis over the years since the accident. The passing of the test is therefore relied upon in support of the submissions that Jubair has been malingering in the past and will perform much better once the exigencies of litigation have been removed.

The Claimant’s response to the Defendant’s case is that it would have been simply impossible for him to have pulled the wool over the eyes of those who have treated and cared for him over the years since the accident. It will therefore be necessary to look at the course of that treatment and the assessments of Jubair made by those who have had to opportunity to watch him most closely in order to examine the competing contentions in some detail.

A large number of documents evidence the relevant factual background both before and after the accident. With limited exceptions, they provide an accurate account of what was either reported to or observed by the makers of the documents and the views being expressed by those involved with Jubair from time to time. Relevant factual evidence was also provided by lay and expert witnesses. This section sets out aspects of the factual evidence that appear most important and makes relevant findings of fact to provide a framework for the discussion of the expert evidence and of the issues in the case that follows.

Jubair was born into a Bangladeshi family of the Muslim faith on 30 January 1988. In 1990 he moved to England with his family, living first in Devizes and subsequently moving to London in 1997, when he was 8. He suffered problems with his ears and hearing in 2002 and 2003, being treated with grommets. He went to school at Rokeby School in Stratford until taking his GCSEs in June 2005. In September 2005 he commenced further studies at Havering College. The accident happened while he was a student at Havering College. He was admitted to Oldchurch Hospital where he stayed until 8 March 2006. While there he underwent a bilateral frontal decompressive craniotomy on 31 January and, on 3 March, stabilisation of a burst fracture of his L1 Vertebra using spinal rods. From 9 March to 9 April 2006 he underwent rehabilitation at Newham Hospital. He was then discharged into the care of the neurological rehabilitation department at Homerton Hospital where he was an inpatient (but returning home at weekends) until 9 June 2006, after which he was treated as an outpatient. In February 2007 he was admitted for a titanium cranioplasty to replace those parts of his skull that had been removed on 30 January 2006. In July 2007 a case manager was appointed under the Rehabilitation Code.

From September 2007 to July 2009 Jubair attended Newham College. In December 2009 he was admitted to the National Hospital, Queen’s Square for an operation to remove the metalwork that had been in his back since March 2006 and which had become the seat of persistent infection. He was discharged in a brace, which he wore until about October 2010. On 10 January 2010 he suffered what was subsequently diagnosed to be an epileptic attack. In March 2010 Brierley McCarten of Tania Brown Ltd was appointed case manager. Subsequent case managers provided through the offices of Tania Brown Ltd were Debra Hall (from June 2010) and Karen Jeffreys (from September 2010 to date and continuing).

Jubair was admitted for further residential rehabilitation at Banstead from 13 September 2010 to 15 July 2011, returning home at weekends. He then visited Bangladesh with his family from July to September 2011. Since his return he has been living at home with care provided by his family and pursuant to the regime established by Karen Jeffries. On 1 September 2011 Mr Kent Pattinson was appointed as Deputy of the Court of Protection. Subsequent epileptic fits occurred on 8 December 2011 and 7 February 2012. On 9 February 2012 he attended the Anglo British Academy in Stratford to take the British Citizenship Test and was recorded as having passed. When his epilepsy was diagnosed in February 2012, he was prescribed Tegretol, which caused him to develop Stevens Johnson Syndrome necessitating an urgent referral to hospital on 6 March 2012. In April 2012 he developed painful gallstones which required admission as an inpatient. In May 2012 he went on holiday to Devon with his support worker, Aron Brown. In September 2012 he underwent thoracic joint injections on the advice of Dr Casey. During the period since the accident there have been reports of urinary and faecal urgency and incontinence. The quantum trial took place in December 2012, at which point investigations into Jubair’s reported incontinence were incomplete.

In addition to his treating doctors and professionals, Jubair has attended over 40 appointments for assessment by expert witnesses, as summarised in Annexe A to this judgement (Footnote: ²).

Mr Jabid Ali and his wife have four sons and a daughter. Jubair is the youngest son. His sister is the youngest child of the family. Mr Ali had lived in England from the age of 11 until he married, when he went back to live in Bangladesh. The Ali family returned to England in 1990. While they lived in Devizes Mr Ali worked in the restaurant business, initially being employed but subsequently owning and running his own restaurant. I accept his evidence that he has not worked since 1996 because of health problems. The family moved to the East End of London in 1997, and now live in Plaistow in rented Housing Association accommodation.

Sadek Ali is Jubair’s oldest brother. He left school without any GCSE’s but has subsequently done well. He obtained a training position with Barratt Homes who put him through a degree course in construction and design. He now holds a responsible position as a technical coordinator for Barratt Homes. Sayem is the second son of the family. He is employed as a reservations executive with Gulliver’s Travel Associates having obtained five GCSE passes at grade C or above and subsequently having obtained a degree in Travel and Tourism at Thames Valley University. He is the third son. Salek has no formal qualifications and works as a match day steward for Fulham and Chelsea football clubs (Footnote: ³). Jubair’s sister is still at school.

The family is close-knit and its members have retained many of the practices of their Bangladeshi and Muslim faith and culture. Mrs Ali speaks little or no English and the family routinely speaks Bengali in the home. Mr Ali and his two sons who gave evidence (Sadek and Salek) speak good but not perfect or entirely naturalised English. Jubair’s application to Havering College was probably accurate in stating that Bengali and not English was his first language. It therefore seems probable that his English was of the same order as that of his father and brothers. By the time of the trial, the two eldest sons were married and had moved out of the family home, but they had not moved far and the entire family would frequently meet for a family meal on a regular, if not daily, basis. It would be common for the youngest son of such a family, if he was still living in the family home, to look after the parents of the family when they got older. Both of the sons who have married (Sadek and Sayem) had their marriages arranged by Mr Ali. While arranged marriages formed part of the family’s culture, the evidence of Mr Ali and of his two sons who gave evidence (Sadek and Salek) was that if a son were to establish a relationship with someone of the same culture who he wished to marry, the family would not insist upon an arranged marriage; but if that did not happen, Mr Ali would, in the normal course of events, expect to arrange a marriage for his sons. I accept that evidence.

Jubair went to Rokeby School in Stratford until he took his GCSEs in 2005. The OFSTED report on Rokeby School in May 2003 said that it was “doing little to help every pupil reach their potential” and “as a result it is not effective enough.” In January 2004 the inspector was of the opinion that the school required special measures, since it was failing to give its pupils an acceptable standard of education. By June 2005 improvements were made and it was taken out of special measures, being described as a “rapidly improving school [which] provides a sound education for its pupils”. Jubair was not in any sense a distinguished scholar. His school records show that in 2003/2004 he had an appalling attendance record, was frequently late, did little work and was disruptive in class. There were, however, signs of improvement in 2005. His overall attendance record for 2004/2005 was much improved (at 93.5%) and he received a letter of praise for his attitude and performance in his Applied Business Studies Course in February 2005. In April 2005 he applied to take a first diploma in Public Services at Havering College; as a fall-back he gave as his second choice an NCFE preparatory course for entry to the uniformed services. He stated that he was “interested in the police force as a career helping people in the community.” His predicted grades were stated by his school to be one D and otherwise in the range of E-G. His teacher wrote of him: “As Jubair’s teacher I have always found him helpful and polite. His attendance is good and it is good to have seen him mature so much especially in the last couple of years. We have talked about his future many times and I know he is dedicated and eager to succeed.” At interview with Havering College he repeated his wish to join the police. Havering College offered him a place on the diploma course conditional upon his achieving 4 Grade Es at GCSE. In the event he did not attain the entry requirement, though he obtained a C for Religious Education. He was therefore admitted to the Business and ICT Level 1 Course, which was a one-year course for those who had been working at GCSE Grade E or below. His intention, which was recognised by the College, was to follow up with a BTEC First Diploma in Public Services Level 2 as he wanted to join the police (Footnote: ⁴). The Level 2 Courses at Havering were for students working at about GCSE Grade A-C level, though they were not directly equivalent.

In October 2005 Jubair stated in his Havering College Personal Development Plan that his short term targets were to pass his course so that he could become a policeman. Initially he missed a few lessons and his punctuality was poor, but this was put down to the distance he was travelling; there was one incident which led to a verbal warning in December 2005; and the College identified a need for ESOL support, which “was greatly improving his use of English” by the time of the accident. By the start of 2006 there were definite signs of improvement with his personal review on 5 January recording that his attendance had improved greatly, his punctuality had improved (though still leaving room for further improvement) and that he had been putting a lot of effort into his studies and meeting deadlines. The review recorded Jubair’s wish to join the police. One of the targets identified was “research into application process for police force” within a time frame of one month. Twenty five days after that review, the accident occurred.

The written evidence from Havering College was that there was “every reason to suppose that Jubair would have passed” the course on which he was engaged at the time of the accident and “would have progressed onto a further course to fulfil his ambition to join the police”. His teacher, Emma Thompson (Footnote: ⁵), and her line manager (who also taught Jubair), Sharon Mills, gave evidence that he was a polite and courteous student who got on with everyone and who showed a degree of initiative, having volunteered to give his class a presentation on being a Muslim as he wanted to help to educate others. The course on which Jubair was engaged was a well-established route for those wishing to take the Public Service Course; and the evidence of Ms Mills supports the suggestion that Jubair would have passed the course and progressed as necessary. While accepting, with some hesitation, that part of the reason for conditional places would be to incentivise the student, Ms Mills said that Havering College had identified his ESOL need as one of the reasons why he may not have achieved his predicted (and required) grades at GCSE.

Immediately after the accident, Jubair was taken to Oldchurch Hospital. His Glasgow Coma Score (“GCS”) was recorded as 3 at the scene of the accident, which means that he was virtually moribund, and 7 on arrival at hospital. He was found to have suffered a compound left occipital condylar fracture; a right temporal fracture extending into the orbital roof; a right extra-axial haematoma with displacement of the extra-dural surface; a left parietal “contre-coup”; contusion; diffuse swelling of the brain; and contusions of both lungs, subsequently developing pneumonia. His head injuries were life threatening and of such severity that it was not discovered until later that he had sustained a comminuted crush/burst fracture of the L1 vertebra. On 31 January 2006 he underwent a bilateral frontal decompressive craniotomy, after which the bone flap was left out. He was sedated until 14 February. A tracheotomy was inserted and he was fed by naso-gastric tube, both of which were reversed by the time he was discharged from Oldchurch Hospital. On 3 March 2006 he underwent a further operation which involved T12-L2 pedicle screw fixation and an L1 laminectomy to stabilise the L1 fracture.

On 8 March 2006, Jubair was transferred from Oldchurch Hospital to Newham Hospital. A letter sent to his GP the previous day by Oldchurch said “in terms of rehabilitation, there is no reason why Jubair should not make a full recovery. He has begun bed exercises with the physiotherapist and is doing quite well.” The letter does not state expressly whether the reference to “rehabilitation” includes cognitive rehabilitation. Oldchurch carried out a cognition/perception screen before he left [E1/B159], in the course of which he copied drawings and wrote his name shakily. Of potential relevance to later observations, he failed to remember the therapist’s name and recalled only one of four pictures; but he was able to identify which finger or fingers were moving. The therapist recorded that he had shown good attention but suggested the need for future assessment of executive function. During his time at Oldchurch a member of his family was present at his bedside throughout the day and often until late at night.

On admission to Newham Hospital, it was recorded that he was slow of speech since the accident, was continent, was able to walk “without aids with assistance”, and needed assistance to turn in bed [E2/C35-37]. Newham soon formed the view that he required targeted and specific rehabilitation in the light of his injuries and that such rehabilitation would most appropriately be given by a specialist rehabilitation unit such as that at Homerton Hospital. Limited progress was made while at Newham. An assessment of function carried out on 15 March recorded that he was fully continent of bowels and bladder and that he was unable to climb stairs [E3/G175]. It is apparent from entries on 16 and 22 March 2006 that he was unable to move his right arm or leg with appropriate strength; he was walking a limited distance with the use of a frame; and he had climbed one flight of stairs with supervision.

Having been referred by Newham on 15 March 2006, Jubair was assessed by Homerton shortly thereafter. A letter written by Homerton on 21 March recorded that on examination his concentration was good, however his memory was impaired. He had “very mild dysarthric speech”. Comprehension of verbal commands was “fine”. Object naming was good, reading was intact, as was writing: this needs to be seen in the context of the fact that his writing just before leaving Oldchurch, though “intact”, had been shaky. Arithmetic skills were “fine” and praxis was normal. There was mild right upper limb and left lower limb weakness and he was quite unsteady on his feet. It is not known precisely what tests or evaluations were carried out by Homerton on examination. It is therefore not possible to identify what standards they were applying when assessing his performance. What is known is that Homerton assessed him as suitable for rehabilitation there. He was therefore discharged from Newham on 29 March 2006. The Discharge Information Form recorded that he was “fully continent” and “fully mobile”. It is evident that the phrase “fully mobile” requires to be seen in the light of the assessments referred to in [18] above. On the evidence I find that, when he left Newham, he was only able to walk limited distances, which required him to use a frame under supervision and he needed help with all his personal care because of the loss of bone which had been removed from his skull. (Footnote: ⁶)

On 10 April 2006 Jubair was admitted to Homerton Hospital. An assessment form recorded that he suffered from occasional memory difficulties. His disabilities were said to include bathing and dressing, which required assistance, and that he could not yet manage stairs. He was said to be fully continent. He was also complaining of longstanding lower back and right sided neck pain.

Shortly after admission a more extensive cognitive function assessment was carried out, on 18 April 2006. No SVTs were undertaken. He appeared cooperative and well motivated throughout the assessment and was speaking of a desire to return to studies and to have potential career in the police. His premorbid IQ was predicted to have been at the higher end of low average. His current performance was assessed overall as being in the extremely low range (0.1^st percentile) with widespread cognitive difficulties. He showed particular weakness in recalling both visual and verbal information after a delay, though impaired learning and immediate recall of verbal information was also indicated. It was thought that these difficulties may have been influenced by his impaired ability to process information at speed, as well as difficulties assessing and generating words. Further testing was carried out on 25 April. On this occasion he appeared rather fatigued and demotivated. However, he scored in the lower end of average on a matrix reasoning test and within the average range on a spatial anticipation test. A case review on 26 April said that the brain injury had left him with “mainly cognitive, memory and insight problems.” It said that the effect of some areas of cognition being severely affected and others being in the average range was that often the difficult areas were being masked. It summarised the position as follows: “In formal testing Jubair’s memory, including immediate and delayed recall, his attention, perception and language skills are all significantly impaired and will need additional rehabilitation input. On the other hand non-verbal reasoning (for example doing puzzles) and the ability to switch strategies are in the average range.” It recommended further intense rehabilitation work in order for strategies to be learned and performed consistently. In relation to his nursing needs, the case review said that he was “now continent”: it did not state that he had previously been incontinent. It was also said that he now did not require his walking stick and that he had progressed very well in physiotherapy.

On neuropsychological reassessment on 6 June 2006 Jubair seemed rather fatigued and demotivated throughout. He appeared to be distracted by objects nearby and seemed to have some difficulties focusing his attention on the assessment. He showed significant improvement in language abilities, which were now in the borderline range, and some improvement in visuo-spatial constructional skills; but these remained areas of significant difficulty. No material improvement was apparent on testing of immediate memory, delayed memory or attention. The results showed that he continued to have severe difficulties in memory for visual and verbal material, and in processing information quickly and accurately. He was discharged from Homerton on 9 June 2006.

The discharge summary reflects Homerton’s observation of and work with Jubair over a period of two months. It is not always internally consistent. For example, in one place it states that Jubair had achieved the goal of playing football, while elsewhere it confirms the correct position, which was that he had not yet got back to sport, including football. However, the discharge summary is an important marker of Jubair’s progress and abilities six months after the accident. In the summary of priority goals identified for admission it is recorded that Jubair had “achieved” the goal of walking independently with no aids indoors and outdoors (Footnote: ⁷); and that he had “achieved” the goals of being fully intelligible when speaking and being able to correct himself independently and being independent with all washing and dressing tasks. The nursing report states that he was continent of bowels and bladder and used the toilet facilities independently. His cognitive abilities were as summarised in [21-22] above. He had reduced movement in the head, neck and trunk. He sat with a pronounced posterior tilt and had a reduced range of movement in the lumbar region and intermittent low back pain, which was said to be improving. There was reduction of movement, strength and co-ordination in the right upper limb and some weakness in the left lower limb. Further colour is given to his achievement of walking independently: Jubair had started to jog in the gym on flat even ground. He was independent walking outdoors including getting on and off a bus, though he had slight reduced road safety awareness. He was also independent in getting on and off the floor. In context, “independent” here means that he was able to perform the movement in question without physical assistance: it is not a reflection on whether or not he would be supervised. He had been motivated throughout to pursue an exercise programme which consisted of upper and lower limb strengthening, core stability, mat work and working on improving his abdominal strength. Turning to activities of daily living, the report recorded that Jubair had initially required supervision when using a shower because of his fear of slipping. By the time of discharge, he had been independent for two months in attending to his own personal care needs. In context, “independent” here means that he had been physically able to perform the movement and did not require supervision. Homerton had concentrated on increasing his ability to mobilise to the local shops, and recorded that:

“Jubair is able to walk to the local supermarket (approximately 15 minutes from the RNRU) negotiating uneven surfaces and generally demonstrating good road safety awareness, although he can rely on other people to check that the road is safe to cross over and has to be reminded not to do this. Jubair shows significant memory difficulties and strategies to compensate for this have been attempted such as writing lists and using his mobile phone as a memory aid. Once in the shop Jubair is usually able to locate ingredients using an organised strategy for categorising items required. Jubair is able to pay using the exact amount of money from a range of coins. Jubair shows good problem solving skills by asking staff if an item cannot be located.”

The Summary section recorded that “Jubair is independently mobile with no aids indoors and requires supervision and the aid of a walking stick outdoors due to anxiety and pain in back and leg.”

The report referred again to Jubair’s wish to join the police force and strongly recommended that he attend Rehab UK to assist him in that ambition. It noted that, because of Jubair’s lack of insight into his cognitive problems, he did not at that time feel that he needed to attend Rehab UK in order to fulfil his career prospects. The report recorded that “as a team, we feel strongly that a placement in Rehab UK is required to address issues such as attention, delayed memory and initiation problems.”

It is to be noted that Homerton identified as a feature of Jubair’s condition that he was able to maintain an ambition or goal over a protracted period (e.g. his wish to join the police) while at the same time lacking the insight to realise that his ambition was probably unrealistic. A further insight into Homerton’s assessment of Jubair is provided by a letter from Dr Ben Papps, a clinical psychologist at Homerton, to Jubair which said “to finish we think you have worked really hard while you have been here and have made good improvements, but there is still a long way to go. We think your stay at the RNRU is the first step on the road to recovery and it would be good for you to get more help...” The discharge summary recorded that “Jubair’s father is dealing with compensation claim.”

During the period following his discharge from Homerton in June 2006 until the cranioplasty operation in February 2007, Jubair lived at home with interventions from the Community Disability Service (“CDS”). He was initially seen by the CDS on 6 July 2006 (Footnote: ⁸). He was then stating a desire to have the cranioplasty operation so that he could return to playing football and to return to study. He was bored, sitting at home playing on the computer and receiving visits from friends. It was recognised that he was not safe outdoors because of his reduced appreciation of road safety. He was being supervised by Mr Ali for most activities as he was anxious about falls. A physiotherapy assessment on 13 July noted that the family was very reluctant for him to walk outdoors for fears for his safety and noted that a tendency to protect him and do things for him did not help maximise his recovery potential. The physiotherapist was told that Jubair had jogged on a treadmill, had played football and had done exercises involving catching balls while standing. Although that is what the physiotherapist was told, I am confident that Jubair had not by that time played football in any meaningful sense of the word, because of his reduced mobility and because of the absence of a large part of his skull. On 1 August 2006 the physiotherapist was told that Jubair was now managing to walk for 30 minutes at a time. Jubair told him that he was always accompanied when he went outside. He felt he would be safe alone, but his brother said that he felt that Jubair did not fully appreciate his cognitive deficits. Jubair and the physiotherapist walked together for about 20 minutes, during which time Jubair managed well, looked for traffic and crossed the road appropriately and showed good balance, walking unaided. In August 2006 he was discharged from the CDS as it was thought he was about to start a course with Rehab UK. At that time the CDS understood that he was managing to walk unaided outdoors for 30 minutes at a time but that he was always accompanied by a family member when he did so [E1/A39].

On 22 August 2006 he attended Rehab UK with his father for an assessment. They were told that he did not travel independently anywhere. He gave as his aims to return to college and to be a policeman. It was said that his recall was ok for recent events and for things around the home and that he stored appointments in his phone and would set his alarm. Rehab UK’s assessment was that he was not ready for their services yet as he was not travelling independently and had the cranioplasty operation coming up.

On 13 November 2006, Jubair consulted his GP complaining that since his discharge (from Homerton) he had been suffering upper abdominal pains and diarrhoea. It was said that he occasionally could not get to the loo quickly enough and that he was incontinent. This is the first reference to incontinence after the accident. It was also recorded that he had back pain and was taking diclofenac (an anti-inflammatory for which gastrointestinal upsets are a well documented side-effect). When he was assessed on 11 February 2007 with a view to undergoing the cranioplasty operation, the assessing doctor recorded “nil” under the heading “genito-urinary system (e.g. ... incontinence ...)” and also recorded “well” under the heading “mental state (e.g. ...cognitive and intellectual functions)”. However, the recording of the assessment of these (and other areas) appears to have been perfunctory, which is likely to be explained by the purpose of the assessment, namely to determine whether Jubair was to undertake the cranioplasty operation. By contrast, an occupational therapy initial interview two days later, on 13 February 2007, recorded “continence: constipated” – this could simply be a reference to his condition in the immediate aftermath of the cranioplasty operation the day before. The OT interview record also said that he would go shopping with his family. On the same day he appears to have said that he wanted to start work as a police officer [E1/B186].

When Jubair was reviewed after the operation in May 2007, the operation was deemed to have been a success, though he had no hair growth over the scar and was experiencing electric-like pains on each side as the nerves in the scalp healed. His general strength was improving but he reported significant memory problems, as a result of which he was referred for a further neuropsychological assessment. While waiting for that, he had a CT scan on his spine which confirmed the presence of a comminuted facture of the L1 vertebral body with pedicle screw fixation between T12 and L2 in a satisfactory position. There was kyphus at L1.

The requested neuropsychological examination was conducted on 18 July 2007 by Dr Jennifer Dean, a clinical psychologist. Jubair was accompanied by his father. No SVTs were performed. Jubair expressed anger that he was now two years behind his close friends as a result of the accident. He said that he wished to return to college but was said to be aware that his physical difficulties may now prevent him from applying to become a policeman. He was pleasant and cooperative throughout the assessment, but presented with patchy memory difficulties and was observed to almost fall asleep on several occasions throughout the assessment, a presentation which repeated itself in subsequent medico-legal examinations. Throughout the assessment he made a number of unrelated comments and questions mid-task and often required prompting in order to continue with the task in hand. On many of the tests he performed at an extremely low or borderline level, though on a short verbal recognition memory test his performance was entirely satisfactory (words: 25/25); and on tests of visual object perception and visuospatial analysis he performed normally. He presented with slurred speech. Dr Dean’s conclusions were that:

“Mr Ali currently performs within the borderline range on tests of verbal and nonverbal intellectual abilities. Compared to his estimated optimal level of functioning, these observations indicate a significant degree of general intellectual underfunctioning. He presents with patchy memory difficulties that appear to at least partly reflect difficulties with concentration. He presents with mild word retrieval difficulties. His visual perceptual skills are good. He performs inefficiently on tests of executive functioning, and also on tests of attention. His overall neuropsychological profile is suggestive of a significant degree of cerebral dysfunction, largely involving the anterior region.”

In the course of the assessment Jubair asked Dr Dean if he would be able to attend college in the near future and they discussed the options of organising formal educational support in the classroom should he do so. Shortly after the assessment, in August 2007, he fulfilled his often-stated wish to return to college by enrolling at Newham College.

On 20 August 2007 Jubair enrolled at Newham College to take what was described as the NEWCAD Level 1 Business Course. Newham’s documentation indicated that their Level 1 was pitched at a level below grade E at GCSE (Footnote: ⁹). On the enrolment form he stated that he was subject to physical disability but not specifically that he was subject to disability affecting mobility. He ticked the box stating “No learning disability”. He also ticked the box stating that he was “Unemployed – actively seeking work” rather than “Not actively seeking work – (i.e. are you on incapacity benefits or are a full time carer)”.

Jubair survived at Newham College for two years, but the contemporaneous documents make plain that it was a struggle. On an OT home visit in the morning of 25 October 2007 he was reported to be very tired after three days at college and was finding things difficult. He reported problems with memory (recall, retaining and processing information) and that he had been offered teaching support at college but had declined. He had returned to retake his first exam and had now passed but was aware that work intensity would increase in the future. He was complaining of significant pain in the lower back when lying down and considerable fatigue at the end of the day. He had no strategies in place to deal with his difficulties with memory but was using his mobile for its calendar. It was reported that he was able to travel to and from college on a bus with friends. It was also recorded that he displayed very low motivation to change his present routines, and that he was reported to be unaware of an SLT assessment that was scheduled for later in the day. The view was formed that Jubair was displaying difficulties with managing and coping with his residual problems from the accident. On SLT assessment that afternoon he was found to be intelligible but there were signs of dysphasia. He was able to follow a two-step written command; complex embedded written text was not assessed. He had difficulties remembering the visit of the OT that morning. At a further meeting on 9 November 2007 both his father and Jubair reported that he was getting very tired. Jubair appeared to be recognising that he was not as he had been before the accident, and that he could not hide his state any more. He identified his key problems as poor memory and fatigue.

His form tutor’s evidence was that, when he first started in her class, he needed to leave it during lessons, which he said was due to bowel problems. As with others at the college, Jubair did not disclose the fact of his accident to his tutor initially. It appeared to staff at the college that he only disclosed it when forced by circumstances to do so.

Jubair’s Term 1 review in about October 2007 identified the need to improve his memory and speaking skills and the need to concentrate more on his work. The submission of coursework was said to be poor. On 18 November 2007 there was a discussion between Jubair’s SLT therapist, Ms McCartney (who was also his key worker in the CDS), and his teacher at college, Georgina Kottekudy. Ms McCartney was told that Jubair was doing level 1, with level 2 being equivalent to GCSE. Ms Kottekudy had identified a number of difficulties: his difficulties with literacy made her question whether he was dyslexic; he had low attention and concentration; he was regularly disrupting class mates, having apparently low insight into the fact that he was disruptive and that his classmates were laughing at him; he had failed the first exam twice and was awaiting the result of a resit; she felt that he was struggling. She had referred him to the special needs service and said that a support worker was available to provide 1 to 1 support after class. Ms Kottekudy‘s evidence was that he seemed ashamed to have an assistant as he did not want to stand out from his friends. (Footnote: ¹⁰) At a home visit by CDS on 22 November 2007 it was observed that he was demonstrating reduced and limited insight about personal motivation and his aptitude concerning progress at college. On 3 December 2007 further cognitive testing was done, the results of which indicated a marked cognitive deficit.

Jubair’s Term 2 review recorded good attendance and punctuality but noted that coursework and meeting deadlines needed improvement. However, in a further conversation between Ms McCartney and Ms Kottekudy and Rebecca Jebaratnam (the Student Learning Adviser) it was reported that he was still distracted and distracting others. Ms Kottekudy had requested a support worker but Jubair had not consented and Ms Kottekudy was concerned about his ability to complete the course. A multi-disciplinary team review involving his occupational therapist and Ms McCartney on 13 December 2007 repeated the identified problems of memory impairment and executive functioning difficulties and recorded his teacher’s concern that he was failing the course. His Term 3/4 review in March 2008 recorded that he had not achieved ECDL enrolment; he had not achieved his computer exercise target; punctuality was slipping; coursework was not submitted; yet Jubair was declining a support worker because he was proud and did not wish to be ridiculed. His Term 5/6 review in about June 2008 referred to him sometimes forgetting where his lesson was being held or being distracted by others. His meeting of deadlines was poor. He was encouraged to re-use the strategy of setting alerts on his mobile phone. Despite these difficulties, he completed Business and Finance Level 1 and NEWCAD Business Studies Level 1.

During this time Jubair suffered significant and persistent back pain for which he attended his GP on a number of occasions. In January 2008 his GP referred him for a neurosurgical opinion, stating that “Jubair is experiencing some discomfort in the mid back area over the scar site. In addition he is keen to start being more active and a rehabilitation worker [h]as suggested exercise at the local gym.” The response (Footnote: ¹¹) said that “he continues to experience some back pain in the area of his spinal fracture and fixation. This discomfort is mainly felt when lying or exercising and he feels that it is also worse when he gets up in the morning.” Further investigations were undertaken and he was in due course referred to Mr Adrian Casey, consultant neurological and spinal surgeon, in June 2008. He described his back pain to Mr Casey as disturbing his sleep and noted it at 7/10 (Footnote: ¹²).

On 15 January 2008, Jubair signed a form claiming Disability Living Allowance, which had largely been filled in by Mr Ali. A second form claiming Disability Living Allowance was submitted a year later, which Jubair signed on 9 February 2009 (Footnote: ¹³). These documents formed the basis for an attack on the honesty and reliability of both Mr Ali and Jubair because the Defendant submits that they materially overstated Jubair’s disabilities at the time and that it was done to secure financial advantages to which he was not properly entitled. It is convenient to deal with both forms together at this point.

The answers particularly highlighted by the Defendant in the 2008 Form were as follows:

The answers on the 2009 form were similar but not identical. In particular:

Mr Ali was cross-examined by reference to the discharge summary from Homerton Hospital in June 2006, which I have summarised at [23] above. He adamantly rejected the suggestion that Jubair had ever been to their GP on his own, saying that either he or one of Jubair’s brothers would go with him. He maintained that all of the statements in the Disability Living Allowance documents were true. I shall return to this issue later when considering the reliability of Mr Ali’s evidence and my findings of fact on all of the evidence.

Before and during his second year at Newham, Jubair started on the first major round of medico-legal appointments. He also continued to be seen and assessed outside the context of his claim. He had been referred for a further neuropsychological assessment report by the CDS. The report was produced in December 2008 and was based on assessments undertaken in May and June 2008. Psychometric testing was undertaken, but no SVTs. Jubair’s pre-morbid IQ was estimated as 88, which fell within the low average range (95% prediction interval 67-109). He was tested with the Hospital Anxiety and Depression Scale (HADS) and fell within the severe category for anxiety and the mild category for depression. He was cooperative throughout testing. On cognitive testing he came within the extremely low classification. On immediate memory (which comprised a list learning task and a story memory task) he was placed in the 0.2 percentile. On all other measures he performed at or below the 0.1 percentile. Testing revealed word-finding difficulties and indicated that he had considerable difficulty attending to information for any length of time. Visual coding was accurate but very slow. Delayed memory testing indicated that he had considerable difficulty. Initial testing showed considerable discrepancies in his performance on memory index tasks, with immediate memory function being much stronger than delayed memory and discrepancies within subsets. It was therefore decided to carry out a detailed assessment of his memory function. That detailed assessment suggested that Jubair’s memory was severely compromised across all domains except working memory. His results on immediate memory put him at the 0.1 percentile and in the “extremely low” range. Delayed memory testing put him at the 0.5 percentile and in the “extremely low” range. The fact that these scores were broadly similar was taken as support for the idea that Jubair was not able to encode and consolidate information efficiently rather than information, once stored, deteriorating or becoming lost. It was felt that repetition led to some improvement. His relatively strong performance on working memory tasks (which measured the ability to attend to information, hold it in memory for short periods of time and manipulate it as required) was regarded as an unusual presentation which was difficult to explain. The summary stated that Jubair’s brain injury had affected his cognitive ability in all domains except working memory. His cognitive performance was “somewhat poorer” than might have been expected from the available description of the injuries he had sustained. The section of recommendations and conclusion stated that he had “a very significant reduction in memory function contributing to an overall impression of a moderate-severe reduction in his cognitive abilities subsequent to his brain injury.” Various steps, aids and strategies were suggested to assist him in learning and coping with everyday life, including technical aids to assist with his difficulties with attention and processing, and the report suggested that an MRI scan might identify sub-cortical lesions that had not been revealed by a CT scan.

In the run up to the 2008-2009 year of college, Jubair told Ms McCartney that he was having trouble attending and processing all the information that was provided during courses. He also said that he would be prepared to reconsider his decision not to have a classroom assistant helping him (Footnote: ¹⁴). A multi-disciplinary meeting was held on 3 July 2008, which was attended by Jubair, his father, Ms McCartney and others. Jubair identified his personal goals, including obtaining employment (“dreamed of being a policeman”), living in his own home, getting up on his own, improving his performance at college and playing a sport. It was recorded that he wanted to attend Rehab UK but that there were difficulties in travelling to London Bridge independently and “[Jubair] does not travel independently.” His medical case manager is recorded as saying that she did not think he was accessing all resources to aid his education.

On 6 October 2008 Anna Stephens, an Occupational Therapist for CDS, recorded a discussion with Jubair in which he said that he always went to college with a friend. He could sometimes get to Stratford alone and knew the bus numbers, but he recognised that he could have difficulty with unfamiliar journeys. He said he was managing his own personal care, but his father said he was getting help from the family. Jubair complained of memory problems. Ms Stephens noted that “Jubair does not seem to fully recognise his difficulties because family/friends compensate.”

In the event, no assistant was allocated to him at school. There was discussion of Jubair being provided with a Dictaphone as an aid to memory, but none was provided. This was despite the college’s Student Learning Adviser being aware that Jubair had a marked memory deficit. At a meeting on 8 October 2008 she reported that Jubair did not remember activities from one session to the next. This had also been observed by Rebecca Jebaratnam, a Student Learning Advisor who saw him regularly. On 10 November 2008 a Support Consent Form & Assessment document recorded that Jubair considered that he needed help with attention and concentration, understanding complex tasks, memory issues and handing work in on time. His travel arrangements were not specified but were said to be “ok”.

On about 27 November 2008 Jubair was discharged from the care of the CDS shortly before he went to Bangladesh for four weeks with his family. The CDS provided a multi-disciplinary discharge report summarising progress and the current situation. After referring obliquely to the need to promote Jubair’s independence by the family reducing the levels of care it provided, the report summarised the rehabilitation goals and whether or not they had been achieved. Among those listed as not achieved were that “Jubair shall investigate potential to travel independently to Newham college from home within two months” and that “Jubair shall demonstrate independence with morning routing using memory strategies within two months.” It noted that he had marked difficulty in retaining verbal information. In relation to the use of community transport it recorded that “[Jubair] reports that he does not use the bus alone unless he is meeting a friend at the other end at a familiar destination (Stratford). [Jubair] travels to college with friends. Able to identify the bus he needs to get to familiar destinations however requires prompting to reach an unfamiliar destination. Encouraged to use landmarks as prompts.” Turning to his progress at college it recorded that “his learning support advisors identified his friends as providing significant support in writing classroom notes and coursework.” It summarised the position by stating that Jubair required high levels of support to engage in college and perform activities of daily living, although there was scope for promoting further independence in these areas. The provision of therapies to that date had been “sporadic and limited secondary to recurrent failure to attend appointments and difficulties engaging his family and educational team in rehabilitation.”

At about the same time, a form listing learning adjustments recorded that Jubair would not receive in class support and that hence he would benefit from one-to-one tutorials with a Support Tutor. It was, however, envisaged that a support worker would provide some help during classroom sessions, including helping Jubair with reading and writing, motivating him, building his self-confidence, taking notes, and reminding him about submissions deadlines. Although his attendance dropped off in the period to February 2009, his progression report in June 2009 identified that he was on track for successful completion of his course and stated that no support requirements were required.

In the event, he passed the Level 2 courses in Business and in Literacy and Numeracy. He then filled out an enrolment form for a course the following year but that did not happen. He ticked boxes on the form for (non-specific) disability and learning difficulties. As with the previous enrolment forms, he stated that he was a UK National. The evidence of Mr Karikari, a Student Learning Advisor at the college, was that Jubair had been to see him to find out if he was capable of taking the level 3 access course. Mr Karikari’s view was that it would be too hard for him. So he referred him on with a view to seeing if there were other courses he might manage. A similar view was also taken by Rebecca Jebaratnam, who had been responsible for writing his learning reviews and who saw him regularly, and by his form teacher. (Footnote: ¹⁵)

In the second half of 2009, attention turned again to Jubair’s back. On 5 June 2009 he was seen at UCLH by Mr Sarsam, a locum consultant neurosurgeon. He recorded [E1/A75] that x-rays showed significant kyphosis of the spine and some evidence of loosening around the pathway of the pedicle screws, indicating that the fracture had not healed in a satisfactory alignment as a result of which Jubair was experiencing back pain. Mr Sarsam recommended removal of the metalwork from the back and carrying out a vertebrectomy (removal of the L1 vertebra and insertion of a metal cage via an incision through Jubair’s tummy) to try to achieve better alignment of the spine. The operation was described as a “major undertaking”. Jubair elected to undertake it though, in the event, the vertebrectomy was put on hold. In the meantime he went on holiday to Bangladesh with his family for about six weeks in August and September 2009.

The operation was undertaken on 10 December 2009 and was a success. It was discovered that the screws were the seat of longstanding infection, which was treated with antibiotics. Jubair was fitted with a brace to support his back. By mid-February 2010, the inflammatory markers (of infection) had gradually subsided.

Mr Ali made his first witness statement on 6 December 2009. He included a description of Jubair’s current condition. He started by saying that Jubair would pretend that he was “ok” and that he liked to make out that he was better than he actually was. He gave as an example of Jubair’s memory problems that he had asked Jubair to go to the shop across the road from their home to buy a top-up for the gas meter for which he gave him money. He had explained what was required twice but on his way across the road Jubair telephoned him to ask whether it was gas or electricity that needed to be topped up. The next day it emerged that the family had no hot water because Jubair had topped up the electricity rather than the gas. Mr Ali said that Jubair’s back pain had got steadily worse since 2007 and regularly kept him awake at night. Jubair was tiring easily; his speech was not clear and people often found it difficult to understand him; he complained of headaches usually two or three times a week for which he took painkillers; and he would be moody if he woke up after a bad night as well as being frustrated by what he had lost because of the accident. He could undress himself but sometimes needed help with shoes and laces because of his back pain. He was being supervised by the family getting in and out of the shower or bath because they were worried about him slipping or falling or hitting his head and because his balance was not good. He had problems concentrating and was easily distracted. He had a problem with slight incontinence as a result of which he frequently wetted himself or soiled his clothes. He had problems socialising and was embarrassed about his appearance and about his speech and was also embarrassed about needing help. He had friends who were helpful and who would usually pick him up to take him to and from college. Mr Ali would do so if they could not.

On 25 January 2010 Jubair was found by his brother collapsed on the floor, drooling and rigid. Although not diagnosed until later, this was his first epileptic attack. It was recorded that he had not bitten his tongue and that there had been no urinary or other incontinence – these references to incontinence appear to be specific to the time of his fit rather than a general observation (Footnote: ¹⁶). The discharge summary recorded that a sizeable area of frontal encephalomalacia had been seen mainly implicating the right frontal lobe of the brain measuring 5.8 x 2.4 cms.

Apart from the infection at the site of the screws, Jubair’s recovery from his back operation was relatively uneventful. A letter from UCLH on 28 March 2010 reported that he was managing quite well but was getting pain with occasional exacerbation. He was continuing with the brace and was advised to “go gentle” on his back until a check MRI after a further three months. When undertaken in May 2010 it showed minimal worsening of the kyphosis but no further compromise of the spinal canal. Also in May he fell downstairs, after which he felt dizzy and suffered an increase in back pain. Further x-rays excluded any bony injury attributable to the fall and soon afterwards he was advised that he could start walking short distances outside (lasting no more than 20 minutes) without his brace.

In June 2010 Jubair attended Banstead for two days for a pre-placement inter-disciplinary assessment. The report on the assessment provides a useful insight into Jubair’s apparent condition at that time; and the subsequent Banstead reports document his progress while a weekly in-patient from September 2010 to July 2011. (Footnote: ¹⁷)

There are a number of references to Jubair being cooperative and well motivated in the course of the assessment. The various areas assessed by Banstead were:

Banstead summarised the results of the assessment as indicating that Jubair had “continuing cognitive, physical, communication, social, emotional, educational and vocational needs consequent to his brain injury, which have a significant impact on his ability to complete functional activities ...” Banstead recommended that he would require a programme lasting a minimum of 6 months at the centre, with 3 monthly reviews. In accordance with this recommendation, Jubair commenced attendance at Banstead on 13 September 2010.

Extensive records from Banstead have been disclosed which show the detailed attention and dedicated care that was given to Jubair over many months. For the purposes of this summary, I concentrate on the main progress reports, which provide snapshots of Banstead’s assessment of Jubair at regular intervals.

Banstead’s initial report on Jubair’s progress is dated December 2010. In the period to the end of December, he was suffering significant low back pain, as is evidenced by a letter to his GP from Dr James Greenwood dated 19 October 2010 and attendances on his GP (Footnote: ¹⁸) where it was recorded that he was suffering chronic back pain which was worse in the evenings and after physiotherapy. By October 2010 he was taking the brace off for about 2 hours per day: this caused him to become slightly uncomfortable and fearful when it had been off for about half an hour. UCLH recommended that he should cease using the brace full time.

The December 2010 Banstead report followed a similar format to the initial assessment, with inter-disciplinary input leading to a detailed summary and plan for the future. The most significant aspects of the departmental reports included the following:

The summary commented on Jubair’s need for full support to access the community owing to reduced road safety awareness and impaired topographical orientation (Footnote: ²⁵). Those involved in his care had a review meeting on 6 December 2010 to discuss his progress. Jubair attended the meeting with his father, his case manager (Karen Jeffreys) and a representative from his solicitors. The discussion covered the areas set out in the initial report. There were repeated references to Jubair being well motivated, and other references to his being distractible. There was discussion of his going in to Banstead. While his physical endurance had improved, he would get disorientated; but he said that pictures helped him to remember. There was a discussion of education goals. Mr Ali pointed out that a number of his friends had gone to university and he wanted to catch them up. Jubair apparently expressed the wish to progress to A-level standard in 9 months. Reading between the lines, it is plain that the staff at Banstead tried to instil a sense of realism, pointing out that he needed to get to GCSE levels first and saying that they could not guarantee that he would get to A-level standard in 9 months (Footnote: ²⁶).

The next full progress report was dated February 2011. Before that, he was reviewed at University College of London Hospital on 12 January when it was noted that he still had some lower back pain but that he had made “excellent” progress with his physiotherapists. UCLH recommended sensible use of resistance exercise as part of his rehabilitation regime while deprecating questions from Jubair relating to martial arts as “a very bad idea due to his significant head injury and spine.”

In advance of the February 2011 progress report, the Banstead team produced a confidential summary of progress dated 27 January 2011. By this time, Jubair had been at Banstead for over four months. The main points in the summary included the following:

The progress report dated February 2011 developed many of these themes. The preliminary summary said that he had generally been motivated to his rehabilitation programme. It highlighted that the result of further neuropsychological testing had indicated that he had difficulty in focussing and sustaining his attention and could be highly distractible, but it said he was able to focus his attention for up to 15 minutes when motivated. Although he was noted in the report to be very slow to rouse in the morning, it was said that he was becoming more independent in waking and in completing his personal care routine, using adaptive equipment. The detailed reports were consistent with the January 2011 summary. The general assessment included that he was motivated and had made good progress. The following points may be noted:

A review meeting was held on 28 February 2011. He had continued to make progress and the possibility of his staying at Banstead for another three months was raised. Amongst the topics of discussion was one (Footnote: ²⁹) which makes plain that the need to use the toilet was an issue: he had gone to get a haircut but had returned home quickly because of his need to use it. The discussion centred on the need for planning before other activities, and it was suggested that his need might be more related to anxiety rather than being physical. There was also a conversation about the possibility of work experience at Waitrose. It is clear that Jubair was not keen because he did not think it was right for him: he referred to the fact that he had wanted to be a policeman and said he would have to talk to his brothers and his friends about other possibilities (Footnote: ³⁰).

A further case review meeting was held three months later, on 20 May 2011. Familiar themes were again repeated: Jubair was easily distracted, he could be anxious about new situations; road safety had improved through a strategy of repetition; when attempting to problem solve, Jubair would sometimes jump into things without planning; he was suffering from back pain though his posture and core strength had improved and he could jog “a little”; punctuality was a problem – Monday morning sessions had been rearranged because his vocational teacher frequently had to go and find him and he was sometimes in bed; he had achieved Literacy and Numeracy Level 2 but he lacked drive and required a lot of motivation; he was not keen on working at the supermarket. Mr Ali referred to Jubair feeling as if he was in a prison and not being able to do what he wanted. On mobility it was reported that he did better if he did the route planning himself; he had obtained and retained his orange mobility card and was now working towards more complex tasks, using the train and bus to go to Sutton, though this would require “a lot more work”. He had done very well in using his mobile phone to take pictures as visual prompts. There appears to have been a significant divergence between those areas where he was motivated (e.g. independent living skills, the gym) and those where he was not, where punctuality would be poor and progress would be limited.

Some further colour and insight is provided by individual entries in the Banstead records, which may be taken in chronological order. On 8 March 2011, when returning from Banstead village, it was recorded that he had followed a haphazard route and had not used his cues because he became distracted by some chickens which he felt he had to go and see. On 29 March, on the same route, he had generally demonstrated appropriate road safety awareness but on one occasion had stepped into the road, appearing to do so in order to get a better view of a landmark. On 12 April it was recorded that had had paid “diminished attention” during bus journeys as a result of which he had not been oriented to his location. He required verbal prompting to look out for cues and to alight from the bus at the right stops. On 1 June he had attended Clusters, a centre of opportunity for people with a disability, for work experience but had lacked concentration and had behaved inappropriately as a result. On 15 June, again at Clusters, he had misinterpreted the situations he was in. Karen Jacoby, Jubair’s Speech Language Therapist at Banstead explained what had happened. A visitor came to the group to speak to the group co-ordinator. Jubair did not recognise any of the signals that the man was not a group member and was not planning on staying. He therefore applied his “welcome routine” to the visitor, getting him a drink and inviting him to join in with the group when it was not appropriate to do so. He was unaware of these failings. It was recorded that he required “full support.”

There is further information about the first half of 2011 from elsewhere in Jubair’s medical records:

Banstead’s final report on Jubair’s progress was dated July 2011. It was presented as a review of his time at Banstead. The following points may be noted:

A discharge meeting was held on 6 July 2011, in advance of his discharge from Banstead on 15 July. Although much emphasis was placed on the progress he had made, the need for support was highlighted repeatedly. He had been to help at Clusters, and had developed strategies “with full support”, being prompted if something happened that was not written down on cue cards. His case manager was told that he would need one to one support for developing strategies when using his phone such as taking messages, making decisions and speech strategies. In relation to independent living skills it was noted that tiredness affected his mood and concentration. It was recorded that he had one to one support when visiting new places; he became anxious if he walked on a small road or pathway; and he would require support when travelling on public transport on bus routes and complex journeys as he had fallen asleep. It was said that he would require full support in the community, practising new routes, and would require support with travelling by public transport. If he returned to college he would need 1 to 1 support for organisation, memory and communication, as he would struggle on his own.

When he left, Banstead produced a Support Needs Guide which is consistent with the contents of Banstead’s final report and provides valuable indications of Jubair’s condition on discharge. It was written by the team at Banstead “to assist support workers to work with Jubair to enable him to maximise his abilities and promote his independence”. He was now nearly 23 years old. It is a long and detailed document, which paints a picture of someone who is significantly disabled, often in fairly subtle ways, and whose performance and need for support and supervision are increased because of his distractability and lack of insight. Some references illustrate the level of support that Banstead envisaged:

Dr O’Brien provided a statement as a witness of fact which was admitted under the Civil Evidence Act. She had started working at Banstead in October 2010 and had worked closely with Jubair in one to one psychology sessions, observing his progress on an almost day to day basis (Footnote: ³⁴). Her evidence was that Jubair had engaged very well in the process of rehabilitation and had been very motivated and engaged throughout, although his executive difficulties made it hard for him to put things into purposive action. She gave as examples of his day to day difficulties that, if he were out in the community and he had the thought to cross the road, then he would impulsively cross the road without checking whether it was safe; or, if he was asked to go to town with a list of five items to buy and was not prompted to make a list beforehand or to put a list onto his phone then he would arrive at the shop and would have forgotten what he needed to purchase. Strategies had been developed while he was at Banstead to deal with these types of problems but her concern was that Jubair would require support to initiate the strategies. She had observed socially inappropriate behaviour, which could be repetitive or bizarre, and which was capable of unsettling others or causing offence; and she noted that Jubair would seek reassurance from others that he is behaving when he should, for example, by asking questions like “did I say the right thing?” or “do you still like me?” She had a concern that this could come across as aggressive because of the way that Jubair delivered the questions. Once again, strategies had been developed to deal with such problems by, for example, walking away or seeking feedback. Jubair had learnt these strategies and his behaviour had improved to an extent that had exceeded Dr O’ Brien’s expectations. In conversation with Dr Bradley (the consultant psychiatrist engaged as an expert in the litigation on behalf of Jubair) she said that his major progress had been on a functional level, though there had been very little improvement in his cognitive impairment except in so far that he had been able to develop strategies to overcome his memory difficulties. His attention had improved to some extent but his comprehension remained low; and he could misinterpret information and his decision making was poor.

Karen Jacoby was Jubair’s speech and language therapist at Banstead. She worked with him regularly. Her evidence broadly reflected the content of the speech and language therapy sections of the Banstead reviews. She added that Jubair would find it difficult to deal with large amounts of information in a pressured situation and that his decision making skills in that type of setting could be impaired, which sometimes led to heightened anxiety. She gave as an example that Jubair would become anxious in a café setting if he felt he was holding other people up in the queue while he read the menu board and decided what to order. She had supported Jubair at his work placement at Clusters, which she regarded of limited use from the point of view of working towards potential employment. She knew that there had been consideration of a work placement in a supermarket. Her evidence was that Jubair was reluctant to try the work placement because he was anxious about it. She attributed this in part to anxiety about his back pain and also to anxiety about new situations where he was not sure about the demands that would be made; and she pointed out that he had been anxious about the placement at Clusters and that they had to work closely with him to get him to engage with that placement.

Mr Andrew Savage was the Education Co-ordinator at Banstead and worked with Jubair on his education while there. He was called as a witness of fact. He illustrated Jubair’s difficulty in comprehending complex written information by saying that he would expect Jubair to be capable of corresponding with his friends through the medium of Facebook but would find it very difficult to comprehend any documents regarding housing or finances. He highlighted Jubair’s lack of focus and his unreliability by giving the example that one could give Jubair direct instructions to go to the shop, thinking that they had been set out very clearly but Jubair would take the instructions in a different way and start heading off in the wrong direction entirely. The key to success, in his view, was constant repetition. It was for that reason that he would not be happy leaving Jubair alone in the gym with heavy weights. When cross examined about what he would expect Jubair to manage on cognitive and educational testing, his evidence was that Jubair was functioning at a low level but that if a person held up their hand he would expect Jubair always to get the number of fingers shown correct.

Mr Savage explained that the leadership skills course was very basic. It did not require a person to be fit and active. To put the entire exercise in perspective, he explained that, although the curriculum spoke in terms of “session plans”, a session plan could be no more than two or three sentences. Mr Savage was clear in his evidence that Jubair would need a lot of assistance to create a session plan as he could not plan or organise from scratch. While accepting that in theory Jubair would have been expected to show some flexibility in running a session, he pointed out that there would have been lots of trial sessions in advance with feedback and other input and also that level 1 was a basic level: it would mean that he could assist a coach but not take a class himself. Mr Savage described the assessment of the course as “quite liberal”, which, in the light of his description, was an understatement.

I found Ms Jacoby and Mr Savage to be thoughtful and reliable witnesses who provided valuable evidence about and insights into Jubair’s condition as he had presented to them.

On or about 16 July 2011, Jubair went to Bangladesh with his family. The precise date of his return is not known, but he appears to have been back by 2 September 2011 (Footnote: ³⁵).

On his return he was referred to the Whipps Cross Hospital Chronic Pain clinic for pain in his back, which he described as “localised low back pain ... an intermittent, throbbing type of moderate to severe pain” lasting for 1-2 hours and which was reduced by exercises and medications (Footnote: ³⁶). He was offered thoracic facet joint injections and placed on the waiting list. The injections were administered on 18 September 2012 after a further referral to Mr Casey.

On 8 December 2011 and 7 February 2012 Jubair had further seizures, which were diagnosed as post-traumatic epilepsy later in February 2012. On 6 March 2012 he was urgently referred to Homerton Hospital because his medication had caused Stevens Johnson Syndrome, with a widespread erythematous papular rash on the trunk and limbs associated with mucosal ulceration and haemorrhagic crusting of the lips. Two weeks later the rash was reported to be subsiding.

In April 2012 Jubair was admitted to Newham University Hospital with a sudden onset of epigastric and RUQ pain and vomiting. The diagnosis was confirmed as acute cholecystitis (gallstones), which is not attributable to the accident.

During 2012, there were further reports of faecal and urinary incontinence (Footnote: ³⁷). In July 2012 Dr Panicker, Consultant Neorologist in Uro-Neurology, wrote that he “felt [Jubair’s] overactive bladder symptoms were related to the brain injury that he has sustained.” However, in August 2012 Dr Emmanuel, Consultant Gastroenterologist, advised that investigation of his anorectal physiology was required in terms of sensation and motor function. Further investigations were planned but had not been completed by the time of trial, although there are further reports of difficulties with faecal and urinary incontinence in the period to trial (Footnote: ³⁸).

Since his return from Bangladesh, Jubair has been supported by a regime put in place and monitored by Karen Jeffreys. Ms Jeffreys followed the Banstead recommendations and arranged for Jubair to be assessed by Laura Slader (Occupational Therapist), Simon Grobler (Speech and Language Therapist), Dr Shai Betteridge (Neuropsycholgist) and the Headway physiotherapy team. The daily regime involves support workers assisting Jubair in and from his home environment. The support workers maintain a daily log, which records their and Jubair’s daily activity. Karen Jeffreys, Laura Slader, Simon Grobler, Nadia Applegate (of Headway) and Aron Brown (Jubair’s support worker at the time of trial) gave evidence as witnesses of fact. I found each of them to be thoughtful and reliable witnesses of fact, each of whom provided valuable and perceptive insights into Jubair’s presentation and condition during the period that they have known him.

Ms Jeffreys’ first witness statement was made in November 2011, approximately two months after Jubair’s return from Bangladesh. At that stage, Jubair was having support from support workers for five days a week, with family support at the weekend. In outline the regime was as follows: on Monday the support worker would attend from 10.30-3.30 pm (5 hours). The support worker would take Jubair to a drama course for adults with learning difficulties in Stratford and would leave him there. The course was to run from 3-6pm for ten weeks split across three terms. At the end of the session pre-arranged taxis would take Jubair home. On Tuesday the support worker would attend from 9am-1pm (4 hours). During this time the support worker was trying to teach Jubair to play the guitar. (Footnote: ³⁹) On Wednesday and Thursday the support worker would attend from 11am-5pm (6 hours each day). By November 2011 no specific activities had been arranged but it was intended that OT and SLT would take place on those days. On Friday the support worker would attend from 7.30-10.00 am (2 ½ hours) to help Jubair get ready for and travel to Headway Young Persons Group in Dalston. Travel to Headway would be by public transport with the support worker. Headway met from 10am-3pm, during which it was intended that Jubair would do physiotherapy and hoped that he might also have neuropsychological sessions. He would then return home in a pre-arranged taxi.

At that stage, the treating Neuropsychologist and Occupational Therapist had recommended that Jubair should ultimately live independently and Ms Jeffrreys was hoping that Jubair might manage to achieve this within six months by renting a 2 bedroom flat, which would involve sleep-in care overnight. She recognised that Jubair had always been cared for by his parents and her assessment was that, without support, Jubair would not manage daily activities such as cooking and laundry: he would therefore need support for those activities. By day she anticipated that Jubair would continue with the current regime of support and therapies. She was concerned that, in the absence of outside support, his family would not prompt him to practise the skills and strategies that he had learned at Banstead. She illustrated her concern about his difficulties by describing his inability to find his way out of Queen Square after a medical appointment, even though he had been there before and insisted that he knew where to go. Then he was unable to cope with purchasing a tube ticket and finding the right lines for getting home. She expressed the view that, for longer journeys, each journey would require to be treated as if it were the first time until Jubair had learned it “by rote and ritual”.

Her view at that time was that Jubair would require one on one support to enable him to participate in any work experience or vocational placement because of his distractibility, and because he would require someone to motivate him and to remind him about the tasks he was required to complete and to prompt him at all times. She was then contemplating that he might undertake a vocational placement about twelve months later i.e. at the end of 2012.

Ms Jeffreys’ second statement was made in June 2012. By then, therapeutic input from the Occupational Therapist, Speech and Language Therapist, Neuropsychologist and Physiotherapist had started. Jubair was still getting support from support workers five days a week with family support at the weekend. The Monday drama course had finished in December 2011, so his support worker hours had been extended to be from 11am-7pm (8 hours) during which time he would initially go to the gym with the support worker. A further drama course had been identified at the City Lit in Holborn from 4-6pm on Mondays from April 2012, but it was a course for adults who did not have learning disabilities. Despite detailed planning of support for Jubair, his attendance was not a success. On Tuesday he now had support from 9am-1pm, as before. On Wednesday he had support from 11am-5pm, as before, and he would attend the gym for physiotherapy. On Thursday he again had support from 11am-5pm, as before. He would attend the gym with his support worker to help him with the physiotherapy routine established by Nadia Applegate, and would also have his OT input. On Friday he had support from 7.30-10am and would then attend Headway as before, where he was now having neuropsychological sessions.

During the past six months, Jubair’s progress had been disrupted by the various medical developments summarised above. In addition, the support worker regime had not gone entirely smoothly, with some changes in personnel and a particular problem of Jubair frequently not being ready when his support worker arrived. There was a reported divergence of view about Jubair’s ability to plan trips to and from regular locations, such as Stratford Shopping Centre: Ms Jeffreys’ view was that he did not demonstrate good ability to plan such trips, but the Occupational Therapist had reported that he did. In evidence, Ms Jeffreys maintained her view although she accepted that the Occupational Therapist was better placed to judge Jubair’s capacity for independent travel and route finding on the routes he did regularly with him. Ms Jeffreys gave a detailed account of the steps that were being taken on a number of fronts to develop and teach Jubair strategies, not only for route planning and execution but also in relation to speech and language, occupational therapy, physiotherapy and with his neuropsychologist. A recurring theme in Ms Jeffreys’ evidence was the need to ensure that Jubair remained motivated. She accepted in cross examination that he was not “devoid of motivation”; but it was recorded that he seemed bored with his home existence and that attempts to engage with the family to improve the quality of support that they gave him had been unsuccessful.

This theme was picked up in Mr Jeffreys’ third statement, which was made in November 2012. Her concern was that, if Jubair did not have support workers, he would spend the majority of his time sitting on the sofa watching television and occasionally going out with Mr Ali. She regarded the family as over-protective and this, together with his medical problems in 2012, had prevented the intended trial of independent living. In addition, the “sedentary atmosphere in the family home” was not conducive to encouraging Jubair to be motivated or to plan activities. While his Occupational Therapist had reported that he may eventually manage the route planning to get to Headway independently, Ms Jeffreys regarded the lack of motivation as a barrier to achieving this, which she attributed at least in part to the stifling effect of living at home. Part of the role of the support workers was to provide motivation, and Ms Jeffreys envisaged maintaining current levels of support for 12-24 months, with a progressive reduction thereafter to about 20 hours per week. She provided a list of things with which Jubair needed support and assistance, covering almost all aspects of daily life from prompting him to get ready to go out to planning activities and journeys, accompanying him when necessary and the day’s activities and use of strategies (which would be with a view to reinforcing Jubair’s habitual use of the strategies in the future). Evidence from the family at trial establishes that it is conventional in the Ali’s culture for the youngest son to look after the parents in their old age. Not unreasonably, Ms Jeffreys added her voice to that of others who have questioned whether or not that is now realistic for Jubair. It was her expressed view that he would always need input from a case manager, support workers and therapists.

Ms Jeffreys was extensively cross-examined (and re-examined) on the progress (or lack of it) made since Jubair left Banstead. In summary:

A detailed picture of Jubair’s day to day life since leaving Banstead is provided by the support worker’s logs. Certain themes emerge. First, there is clear evidence, with numerous documented examples, that Jubair’s performance and presentation are markedly affected by his mood from time to time and by fatigue. Second, although it is plain that Jubair is familiar with how to use computers and social media, there are repeated examples of his having to be assisted in normal everyday transactions. A few examples suffice to illustrate the level of intervention and support provided by his support workers. On 22 November 2011 he needed assistance in setting up internet banking by phone. On a number of occasions he had to hand the phone to his support worker because the staff at the other end were unable to understand his questions and answers; and he failed to understand the requirements for setting a code number. On 10 January 2012 he became confused at questions that the bank was asking him on the phone, and had to repeat answers for the operator (Footnote: ⁴⁰). On 19 June 2012 he required support in obtaining his Freedom Pass. On 27 June 2012 he locked his Iphone because he had forgotten his PIN number. The support worker assisted him in booking an appointment at the Apple Store and in practising in advance the things he needed to say when he got there. On 26 September 2012 he struggled with the self-service checkout at Tescos and needed support and prompting to see how it worked. On 24 October 2012 he needed to request and record new passwords for various websites when he had forgotten his old ones.

A third recurring theme in the daily logs is Jubair’s difficulties with orientation and safety when travelling. These difficulties applied to journeys with which he was (or should have been) familiar, such as going to his brother’s house or going to Headway, as well as to unfamiliar circumstances, such as when he became very disorientated in Oxford Street (Footnote: ⁴¹). On occasions he would simply forget where he was meant to be going (Footnote: ⁴²). On others he would act dangerously: for example, on 10 May 2012 his support worker had to remind him not to use his Iphone when crossing the road; and on 16 October 2012 he walked into the middle of the road, apparently oblivious to an oncoming taxi.

Fourth, fatigue is a recurring problem. The logs refer to him drifting off to sleep on the tube (Footnote: ⁴³), falling asleep in a waiting room (Footnote: ⁴⁴), being exhausted on the way back from a return visit to Banstead (Footnote: ⁴⁵), putting his head down to sleep when in a cafe in Torquay (Footnote: ⁴⁶), and other occasions of being overwhelmed with tiredness (Footnote: ⁴⁷). Fifth, the daily logs also refer on a number of occasions to urgency or incontinence, examples being found on 19 January, 2 May, 1 October and 16 October 2012.

Aron Brown is Jubair’s main support worker. He has a BSc in psychology at Goldsmiths’ College and is hoping to progress to taking a masters degree in clinical and cognitive neuro-science. He was, in my judgment, a thoughtful and reliable witness. Jubair was his second or third client. By the time of the trial he had been working with brain injured clients for approximately 18 months. On the basis of his experience of working with Jubair he considered that Jubair has a significant brain injury, which would be clear to anyone who met him. It is also his view that the family’s care for Jubair is overprotective because they tend to do things for him rather than encouraging him to do tasks himself.

I have mentioned the problem of Jubair not getting up before his support worker arrives. Mr Brown’s strategy for dealing with this is to ring Jubair shortly before he arrives, which normally works. As with other witnesses, Mr Brown’s view was that Jubair could manage simple and short journeys with which he was familiar on his own but that any complexity is beyond him, whether it involves reading the tube map, or making decisions as to which bus line or train lines he should take. When tackled about why he had not instituted the strategies that had been in place at Banstead, his response was that he had adopted other strategies in their place: his evidence on this point was consistent with what he told Dr Gill (the psychiatrist instructed on behalf of the Defendant in the litigation) in July 2012, which was that Jubair was using an app on his phone to find his way to the gym (Footnote: ⁴⁸).

In May 2012 Mr Brown took Jubair on holiday to Torquay for 5 days to see a friend who Jubair had made in Banstead. Apparently Jubair had originally suggested Mexico, but they settled on somewhere closer. The detailed records maintained by Mr Brown provide a snapshot of the difficulties that Jubair experiences on a daily basis. They were to drive down to Torquay. When Mr Brown arrived at Jubair’s home, he was not up or ready. Mr Brown asked if he had packed everything, specifying the things he needed. Jubair said that he had, but when unpacking at the hotel it became apparent that he had left behind a number of items. On the journey they stopped for food but Jubair expressed anxiety that if he ate too much he would need to use the toilet again, which happened in any event. The next day the hotel owner gave them simple directions to find a gym, two minutes walk away. Outside the hotel Jubair was unable to remember the directions or the name of the gym. At one point when walking, Mr Brown turned round to see Jubair walking in the middle of the road. Jubair said that he had not realised that it was a road (as it was a pedestrian friendly high-street with no pavement step). When they went into a shop, Jubair used the strategy of running his finger along the shelves in order to find what he wanted. Even so, he required prompting when he passed items for which he was looking. The next day they decided to go to a café that they had previously seen close to the hotel. As it was a simple route down one straight road, Mr Brown asked Jubair to lead the way. As they crossed the first road to get to the café Jubair paused and asked where they were going. On the penultimate day Mr Brown was woken up by the owner of the hotel who said that he had been unable to wake Jubair. The problem was that he had gone to sleep leaving the shower in his room turned on so that it had flooded through to the hallway of the hotel. Jubair then had to move rooms. Mr Brown asked him if he had gathered all his clothes, which Jubair said he had; but in fact he had not. Throughout the holiday Jubair repeatedly said how happy he was with his freedom, which Mr Brown took to be a reference to his freedom from the constraints of his home life.

Further insight into Jubair’s condition is provided by the evidence of Laura Slader, Simon Grobler and Nadia Applegate. I found each of them to be good and reliable witnesses who provided useful evidence about Jubair’s presentation and condition.

Ms Slader is an independent specialist neurological occupational therapist. She carried out an assessment in October 2011 but did not then see Jubair again until shortly before the trial, handing his direct care to her colleague Mr Morris. She was therefore largely dependent upon the reports from Mr Morris for her information about Jubair’s process in the intervening period. When carrying out her initial assessment Jubair told her that, with routes he was used to using, he felt confident using the bus and the train independently, but that new routes would be a challenge and he would get lost and need accompanying. However, when Ms Slader went on the bus with him he was unable to select appropriate bus routes without prompting and appeared to have forgotten how to use the strategies that had been put in place at Banstead. This, she said, was not unusual where people attempted to carry strategies over from a structured environment to the outside world. In her assessment she identified the need to develop strategies for independent travel as a priority. She accepted that, according to the available reports since her initial assessment, there had been no emphasis on route planning such as she had envisaged: her understanding was that strategies had been set up but the support workers were not consistently following them. Progress had been achieved in the period shortly before trial when steps had been taken to introduce the strategies. The gist of her evidence was that he should be able to become quite secure when making routine and simple journeys but, the risk remained if the route had changed e.g. because a train did not arrive or because a pavement was up. In her view they were now close to the point where the support workers could step back for the journey to the gym and that, had similar strategies been used earlier, he could have managed most of his routine journeys (e.g. to his brothers house or to the GP’s surgery) on his own. It remained her view that new routes could not be achieved independently without instruction or guidance.

Mr Grobler is a specialist speech and language therapist who first met Jubair in September 2011. He identified symptoms resulting in imprecise articulation, reduced intonation, and mildly reduced intelligibility (clarity of speech at single word level and moderately reduced clarity at sentence level). He recommended a course of SLT which was then undertaken. When he next reported in April 2012, Jubair had made excellent progress: the most effective strategy for optimum speech clarity was for him to be reminded to concentrate. The third report in September 2012 recorded that Jubair continued to experience difficulties with people understanding him. It recorded some dislocation of the planned programme in the intervening period and recommended further support. In evidence he said that Jubair’s speech remains imprecise and that to achieve greater clarity he needs continuous prompts.

Mrs Appelgate is an experienced physiotherapist at Headway East London. She first met Jubair in November 2011 to assess his physiotherapy needs. Although he had communicated well with her throughout his assessment he was unintelligible at times and needed to repeat certain phrases. He was not then receiving any physiotherapy. Mrs Appelgate recommended that he should follow an exercise regime on a regular basis by carrying out an exercise programme in a gym. Her advice was that he would require assistance to motivate him to carry out the regime on a regular basis. She advised that the regime should be devised by a neuro-physiotherapist and should be supervised at regular intervals to ensure it remained suitable for his needs. When she next reported in March 2012 Jubair had undertaken the exercise regime, which he was carrying out with support from his support worker. His back pain had improved, as had his strength, endurance and core stability. He was following the gym programme on a regular basis. She had provided a further progress report in August 2012 at which time further improvement was noted. In particular his back pain had reduced. Further reduction of the back pain occurred after the thoracic joint injections in September 2012. Her view was that the support workers were going to the gym with Jubair for his reassurance and motivation but that he was able to follow instructions that were given to him. She regarded the encouragement to attend as important because of Jubair’s long term back pain.

I have left till last the evidence of members of Jubair’s family because I have concluded that the documented evidence from time to time and the evidence of the independent witnesses provides a surer foundation and a more reliable source for an overall view of Jubair’s abilities and disabilities in presentation both before and after the accident. There are a number of reasons for this conclusion. First, there can be no doubt that Mr Ali is passionately devoted to his son and regards what has happened to Jubair as a great injustice. Although the agreed split of 80/20 on liability involves an acceptance that Jubair was partially responsible for the accident, the great preponderance of responsibility rests with the Defendant and fully justifies Mr Ali’s view that his son has been and remains a victim. However, his devotion to his son and the fact that he has been engaged in the litigation process for a long time mean that his evidence has to be regarded with a degree of caution. Second, there is a consistent strand of evidence from the independent witnesses that the family have been and are over-protective of Jubair. It is therefore likely that their evidence may be affected by an over-protective view of his abilities and disabilities. Third, there is demonstrable evidence that Mr Ali is capable of, at least, putting his son’s case at its very highest when seeking to obtain financial payments that he regards as justly due to him or Jubair.

However, I reject the Defendant’s attack on the fundamental honesty of Mr Ali’s evidence. That attack initially had two main strands. The first challenged the truth of his evidence that Jubair had taken (and failed) the Citizenship test twice before February 2012. That attack fell away when late disclosed documents showed that Mr Ali was right. The second challenged the truthfulness of the Disability Living Allowance claims that Mr Ali helped Jubair to make in early 2008 and 2009 (Footnote: ⁴⁹). This requires more detailed consideration.

In 2008-2009 Jubair’s back was causing him significant problems. He had suffered a severe comminuted fracture which had required fixation in March 2006 (Footnote: ⁵⁰). This discharge summary from Newham, upon which the Defendant relies heavily, recorded that that he was independently mobile with no aids indoors, but that he required a walking stick and supervision outdoors due to anxiety and pain in the back and leg (Footnote: ⁵¹). Although the physiotherapist was told in August 2006 that he was managing to walk for 30 minutes at a time, he was also told that Jubair was always accompanied when he went outside (Footnote: ⁵²). Soon after attending Newham, Jubair was complaining of significant pain in the lower back when lying down (Footnote: ⁵³), and shortly thereafter he started on the round of medical appointments, which were caused by his complaining of back pain. He had a kyphosis of the lower spine and developed a long-standing infection around the site of the screw fixation, which was disclosed on the removal of the metalwork in December 2009.

On this evidence, I find that Jubair was experiencing significant back pain on walking, both in January 2008 and January 2009, when the DLA forms were filled out. I find that it was true to say that he would feel discomfort which could reasonably be described as severe after 8-10 (or, in 2009, 5-10) minutes walking. I also find that it was true to say that he felt nervous because of fear of stumbling and falling when outside and that he was routinely accompanied by others when he walked outside and that he would be given physical support. The answers indicating that he needed someone with him to prevent him getting lost, suffering panic attacks and to ensure that he was safe accurately reflected the view of Jubair and his family when the forms were filled in. This was in part a reflection of the family’s highly protective attitude to Jubair, but it meant that these answers were essentially true. Where I consider that the answers exaggerated the position was in stating the distance that he could walk and the time he would take it (Footnote: ⁵⁴): these answers are inconsistent with the evidence to which I have referred above about his ability to walk for 20 or 30 minutes. I reject the Defendant’s fundamental attack on Mr Ali’s honesty based upon these documents. In my judgment, they are to be seen as the product of a concerned father generally stating the case at its highest as he genuinely saw it, but falling into exaggeration in one area which, while important, does not require the entirety of his evidence to be discarded as tainted with dishonesty.

Turning to the evidence of Salek, in a statement made in November 2011 he said that he had wished to join the Navy at the age of 16 and that he had recently made an application to join because he wanted to develop a proper career. He said that he had had a face to face interview and that he had a fitness test coming up before Christmas 2011. In a statement made in June 2012 he said “I took the fitness test at the end of 2011 but unfortunately I did not pass the test”. When cross examined about his attempts to join the Navy his evidence was frankly contradictory. He said that he had failed a fitness test in 2010; that the Navy had said that he should take another one when he was ready; and that he had not taken another one at any stage as he wasn’t fit enough. He embellished this by saying that he had tested himself and realised that he was not good enough.

I reject Salek’s evidence about his applications to join the Navy. He may at some stage have made an application, but I am not satisfied that he took any active steps in or after 2009. I strongly suspect that his evidence about what steps he had taken to join the navy was given in an attempt to show that he might have a greater earning capacity than his employment record suggests, and thereby to assist Jubair’s claim. On other matters his evidence was more helpful, but I view his evidence generally with caution. I have considered whether my reservations about this part of his evidence cast doubt more widely on the truth of the evidence given by other members of the family. Having seen Mr Ali and Sadek giving evidence and having reviewed the content of their evidence again, I would reject any suggestion that their evidence has been prepared and given with the intention of misleading the Court in order to advance Jubair’s case. My assessment and conclusion is that Mr Ali and Sadek were fundamentally honest witnesses. This is important, for reasons to which I will return later.

Sayem Ali went to Bangladesh shortly before the trial although he knew that it was happening and that he was to be a witness. The reasons for his absence were not satisfactorily explained. A Civil Evidence Act notice was served in relation to his evidence. Given the uncertainty about the circumstances in which he came to be absent, I do not feel able to place any great weight upon the content of his witness statement.

With these reservations in mind, I turn to the additional evidence given by the family.

When asked about Jubair’s time at college, Mr Ali was adamant that Jubair could not have managed without significant help and that he never used public transport on his own to go to and from college because there was always someone with him. Mr Ali accepted that Jubair would go out in the evening, but only in company with others. Sadek’s evidence was to the same effect: when Jubair was at college he managed only with significant help and would always have been accompanied on public transport. Even now, the family would always try to drop him off and pick him up from the GP’s surgery, which would be about five minutes normal walking distance way. (Footnote: ⁵⁵) In a statement made in December 2009 Salek referred to Jubair being very forgetful and having significant difficulties with his back. Salek’s evidence was that Jubair remained unreliable and not safe to be let out on his own and that the family would ensure that he would be accompanied whenever possible (Footnote: ⁵⁶). On a slightly different point, he also referred to Jubair having played friendly matches of football with the family when they were in Bangladesh and needing to be careful so that he did not hit his head.

Because he now lives with his wife and family, a short distance from Jubair’s home, Sadek is not directly involved on a day to day basis. His evidence was that Jubair’s memory remains poor and patchy and that his ability remains reduced, but that his general outlook had improved in the period since Banstead.

Sadek was cross examined about Jubair’s enthusiasm for Manchester United and entries on his Facebook account where he discussed footballing facts and gossip with obvious interest. Even in relation to football, Sadek’s evidence was that his memory would be patchy and, when it was pointed out to him that Jubair appeared to know where one of Manchester United’s prospective signings came from and what he was like, he pointed out that Jubair presently spends most of his time at home watching Sky Sports News and Sky Sports. According to him there would be good days and bad days: on a good day Jubair could remember quite a lot but some days he would forget information. Away from football his evidence was that Jubair sometimes remembers things but sometimes does not, so it is impossible to rely upon him.

Salek said that if he and Jubair played computer games requiring use of a console held with both hands, Salek would usually win easily but, according to Salek, Jubair would often say that he had won. (Footnote: ⁵⁷)

I accept this evidence as providing additional information about and insight into Jubair’s presentation on a day to day basis.

Three aspects of the evidence require separate consideration. The first is the evidence relating to Jubair’s taking of the citizenship test. The second is the evidence of those who have known, cared for and worked with Jubair about whether he is a malingerer. The third is evidence given about the future, including the possibility of the family starting a restaurant or takeaway in order to give Jubair employment and the prospects of Mr Ali arranging a marriage for Jubair. The first two are closely related because the Defendant says that the Citizenship test episode shows that Jubair is a malingerer.

Jubair did not give evidence. Nor did the support worker who was with him on the day of the test, 9 February 2012; but he did fill in the daily log with the following account:

“Brief outline of the days activities

Jubair stated he planned to take a cab to an office building in Romford Rd E7 to sit the Life in the UK test. We arrived at the building. Jubair sat the test and stated he had passed.” (Footnote: ⁵⁸)

The Defendant called Mr Coldham, the manager of the centre at Stratford, which Mr Coldham’s employers run for the UKBA. Taking the test costs £50. The centre runs 600-700 tests a month. In order to sit the test the candidate must register online before booking the time and place of the test. The application makes provision for candidates to state that they have physical or mental difficulties that may affect their ability to complete the test. In certain circumstances extensions of time for taking the test may be allowed; or the questions may be read to the candidate rather than appearing on screen. When booking the test, the candidate must provide details of their photographic ID (e.g. passport details) as well as proof of home address. On arrival the candidate will be asked for proof of ID and home address, which are checked three times (in the waiting room, when logging on to the test system, and in order to receive the test results).

The test room is approximately 23-18 ft and has 15 (Footnote: ⁵⁹) terminals for candidates, each separated by wooden panels to prevent candidates looking at the screens of other candidates. Each terminal has headphones so that the candidate can listen to questions and possible answers if they wish. The test involves 25 randomly selected questions, which are multiple choice. The questions are randomly selected by the computer, so candidates sitting the test at the same time will receive different questions. The pass mark is 75%, which requires 19 correct answers. Mr Coldham’s estimate was that if a person was “clued up” and had done their homework, then they would do the test in 25-30 minutes maximum, with a lot of candidates doing it in 15 minutes and then reviewing their answers.

The only item allowed on the candidate’s desk is their ID. At least two test supervisors are present in the room while the test is administered. Staff are rotated and do not know in advance what role they will be performing on a particular day at a particular time. Mr Coldham estimated that one person is caught cheating each month, the most common methods being the use of Bluetooth devices to communicate with people outside, or writing information on their arms. A person found cheating is disqualified. Mr Coldham’s evidence was that using a mobile phone would be obvious to the invigilators.

The records provided by Mr Coldham showed that the test was booked on 2 February for 1-2pm on 9 February 2012, giving Jubair’s hotmail address. No request was made either for a closed session or an extended session for the taking of the test. No other person was sitting a test at that time. Jubair took one practise test which started just before 12.48 pm and finished just over a minute later: four questions were asked and three correct answers given. The main test then started at 12.49:32 and finished at 13.09:35, just over 20 minutes later. 24 questions were asked in that time and 19 correct answers were recorded.

Three other recent attempts to book a test from Jubair had been made, each of which was timed out with no fee being payable or paid:

Mr Ali gave evidence which was at times unclear and apparently self-contradictory about the citizenship test. I formed the view that this was only in part due to difficulties of language.

In a statement made shortly before trial Mr Ali said that shortly after the liability trial at the end of 2011 he found out that Jubair was thinking of going on a “lad’s holiday” to Mexico with some friends. He did not know who those friends were and he had let Jubair know that he was not at all keen on the idea. He said that Jubair had taken Citizenship test twice before and failed it each time. This was heavily challenged by the defendant but, as a result of late disclosure originating within the UK Border Agency, proved to be true.

Mr Ali said that he was surprised when he found out that Jubair had taken the test a third time and had passed it because he had failed it twice before. He had asked Jubair why he had taken it and had been told that his friends had told him that he needed a British passport to go to Mexico because he would need a visa to go to Mexico with a Bangladeshi passport. In his statement he said that he had asked Jubair why he had not told him about the plan and that Jubair had said that it was because he knew Mr Ali did not want him to go to Mexico with “these friends”. Jubair had told him that his friend had arranged for him to go to take the test and had given him a mobile phone for him to take into the test with him. He had said that he had handed in his own mobile phone but still had the phone given to him by his friend when he took the test and that he had used the phone to help him to pass it. Mr Ali did not know exactly how he had used the phone. Mr Ali’s belief was that Jubair could not have passed the test without assistance and he commented that it was unlike Jubair to keep things from him because they are close. According to the witness statement evidence, Jubair would not tell Mr Ali who the friend was who had arranged the test for him.

When asked about Jubair’s passing the test in oral evidence, Mr Ali referred to a friend called Sharif, who Mr Ali knows and trusts. Mr Ali said that Jubair had told him that Sharif was going to Mexico. There had been a conversation in advance and his other sons had laughed, saying that Jubair would not pass. His reaction when Jubair told him that he had passed was “you must be joking”. His immediate reaction was that something had gone wrong and he stated the belief that Jubair may have got in with “the wrong crowd”.

Mr Ali said in cross-examination that he had only discovered about 5 or 6 weeks before the trial that Jubair had passed the test and that he had discovered it from one of his other sons. When he challenged Jubair, Jubair had said that he wanted to go to Mexico. When Mr Ali asked him how he had managed to pass it, he had said “I didn’t”. He made clear that he was not happy about the proposed trip and that he doubted that Sharif had anything to do with it. He stated the belief that Jubair had kept the fact of the test from him because he was going to cheat and said that he had seen on Asian TV the advertisements that say that people could be guaranteed to pass their test. When pressed further about why Jubair had taken the test he said that Sadek’s wife had taken the test and so she had the books to read. He thought that Jubair had used the handbook on the two previous occasions. His view had been that there was no way that Jubair could pass the test so he let him go along with it. He was not able to say whether or not the handbook was in fact at their home.

When cross-examined about whether he had asked how Jubair had used the mobile phone, Mr Ali said that he had not asked Jubair how he had done it because Jubair would get angry if he asked him too many questions. He repeated the view that there must be somebody behind Jubair who had encouraged him to do it.

Sadek had limited evidence to give about the citizenship test. He said that the first time that Jubair had sat the test he had revised and revised but still failed. He did not know how Jubair had prepared on subsequent occasions. He had heard Mr Ali and Jubair discussing how he had passed, and had heard the suggestion that he had cheated. I accept his evidence on this topic, limited as it is.

For reasons I have already given, certain aspects of Salek’s evidence were unsatisfactory. However, I found his evidence in relation to the citizenship test more helpful. He remembered Jubair revising online and taking practise papers for the test online and failing. He said that he himself had tried the test twice online, passing once and failing once. He thought that Jubair was struggling and that, after Jubair had failed the actual test for the first time he had asked him why he was wasting his time and money in booking further tests. When Jubair told him that he had passed, which he did soon after taking the test, he had tried to “act cool” but was obviously very happy about it. Salek’s attitude was that he still couldn’t believe that Jubair had passed but he thought that maybe all his practising had paid off. Jubair had never mentioned to him that he had passed by cheating. I accept this evidence.

Aron Brown had asked Jubair how he had managed to pass the citizenship test but Jubair was not forthcoming and did not want to talk about it.

When Mr Coldham gave his evidence he supported the Defendant’s case that Jubair had not sat the test before 9 February 2012. However, it emerged that the online system that he was describing and upon which he was relying had been introduced in July 2011. He was therefore asked to make further enquiries after giving his evidence. In the result, further documents were produced which showed that Jubair had indeed sat the test twice before, on 15 and 22 May 2010, and that he had failed on each occasion.

I make relevant findings later, after reviewing this evidence in the light of the other evidence in the case.

The citizenship test loomed large in the oral evidence of virtually all the witnesses who were asked about whether Jubair is a malingerer. I deal with the expert evidence in detail later. All independent factual witnesses with recent knowledge of Jubair were tackled with the Citizenship test and whether Jubair passing it would be consistent with the view they had formed of him; and all agreed that, if he had passed it (either fairly or by cheating), it would be inconsistent with the view that they had otherwise formed of his abilities.

Ms Jeffreys rejected any suggestion that Jubair was a malingerer. In her first witness statement she said that Jubair “would have to be at genius level in order to carry off such a feat.” That remained her view in her oral evidence, even when tackled with the passing of the citizenship test. She did not accept the proposition that it was no part of her job to disbelieve her client, pointing out that part of her function was to review the information she received. She said that if inconsistent behaviour had been exhibited she would wish to investigate it but that she and her team had not seen any such behaviour in Jubair’s case. She pointed also to the fact that Banstead had not picked up anything which led them to suspect malingering, although he had been there on a weekly-boarding basis for nine months. In this she was supported by the direct evidence of Dr O’Brien, Ms Jacoby and Mr Savage, all of whom rejected the suggestion of malingering when it was put to them in cross-examination. Dr O’Brien did not have any suspicions that Jubair was malingering and therefore did not conduct any SVTs with him. Ms Jacoby responded to the suggestion that it was no part of her duty to look for malingering by saying that in an acquired brain injury case you would be mindful if the presentation was inconsistent and that you would quite quickly recognise if performance was inconsistent. To her knowledge, he had shown no such signs of inconsistency during his time at Banstead: although he had sometimes done things that were silly and didn’t have the social perception to realise that he was taking a joke too far, she had interpreted that as difficulties in social judgment, not least because it didn’t act to his advantage but tended to annoy people. Mr Savage saw nothing in his behaviour during his time at Banstead that caused them to reconsider their assessment because of inconsistency: his judgment was that Jubair had appeared motivated in his rehabilitation. Ms Jeffreys was correct to point out that no one outside the context of the litigation has suggested that he might be malingering.

Ms Jeffreys was cautious in saying that she would wish to investigate the facts in more detail, which she had not yet done. However, on the facts being suggested to her she accepted that for Jubair to have passed the test showed a degree of motivation (though not necessarily initiation, unless he had carried out the whole episode on his own and of his own volition), concentration and performance that was inconsistent with her assessment of him. In particular, she could not square it with her assessment of Jubair as someone who would be anxious in pressured situations, since Jubair would have to deal with questions appearing at about 2 minute intervals. Her reaction was much the same as that of Ms Jacoby and Mr Savage when they were taxed with the same issues. Ms Jacoby regarded it as inconceivable that he could have passed the test, while Mr Savage said that if Jubair had the speed and accuracy required to pass the test that would really surprise him and that if he had passed by cheating and getting the answers from outside it would startle him.

Laura Slader gave what I regard as an illuminating answer in relation to the test. She found it utterly inconsistent with his treatment and how he had been presenting. While there had been mild inconsistencies in his general presentation, she saw those as being to do with who was dealing with him and how. He requires very straight forward explanations as he has conceptual difficulties e.g. with understanding of brain injury. He has been given strategies that he is motivated by and works alongside people with and that he finds meaningful e.g. technology where it ticks the box and seems “cool”. She felt that if there were dummy revision notes he would need someone to sit down and go through them with him. She felt that, if he had practise papers and did it by rote then maybe it would have been possible, but she did not know of evidence that this was what had happened. Her view was that he would not initiate that approach. She did not think that Jubair was malingering: her view was that someone of her experience would know when someone was pulling the wool or trying to affect their conduct. Her evidence was that such conduct would normally be in the context of the main assessment but when a person is being seen weekly it is extremely difficult for them to do.

Mr Grobler said that the fact that Jubair had passed the citizenship test would surprise him whether he had cheated or not. While he accepted that, as a treating clinician, he did not take upon himself the task of whether the patient was telling the truth or not, he said that if he had seen an inconsistency he would raise it with other disciplines such as the case manager or a consultant because if he had noticed it then they are likely to have done so too. But he regarded Jubair’s presentation as always typical.

Mrs Applegate gave brief evidence about the test: she had not been aware of it until a week before trial but felt that it was inconsistent with what she had seen. Her evidence was that she had never seen anything inconsistent in Jubair’s presentation.

When asked about the citizenship test Mr Brown said that if Jubair had passed it by cheating it would surprise him and that if he had passed it legitimately it would surprise him even more. Having been told about the citizenship test he had looked back and wondered if there were situations where Jubair had been feigning but he still did not feel that Jubair was capable of doing so.

On a number of occasions when visiting medico-legal experts, a suggestion had been made that Jubair might become involved in a restaurant business run with or by other members of his family. Specifically:

Mr Ali gave evidence about this. In his witness statement made in December 2011 he said that he was trying to think of something constructive that the family could possibly do with Jubair so that he was kept occupied. No practical plans had been made at that stage. When cross examined he explained that he had suggested the possibility of a takeaway because it would be simpler and with smaller orders than a restaurant. He reiterated that the idea of the business was an attempt to find a way of setting up something for Jubair. In effect it would have to be a business run by others with a view to providing Jubair with therapeutic occupation. Mr Ali’s evidence was that it is not feasible because of his wife’s and his own health and because his older sons are now too busy. In addition, it is dependent upon the money coming from Jubair (which means being authorised by his deputy) since Mr Ali does not have the funds to finance the venture. I note in passing that the evidence from Jubair’s deputy is that he would not contemplate funding such a venture out of Jubair’s damages, for reasons that are cogent and compelling.

On the subject of a potential arranged marriage for Jubair, Mr Ali initially said in evidence that in his culture and society he would not let his daughter marry someone with a brain injury and appeared to suggest, that in order to arrange a marriage for Jubair, he would have to lie. He later clarified this, explaining that when arranging a marriage it was necessary to give all details of education and health. His concern was that if a prospective wife was not told about the brain injury, everything would fall apart; however, if he was open and told a prospective wife about Jubair’s condition it would be difficult to conclude arrangements. In July 2008, he told Dr Gill that to get Jubair a wife would be “a problem”. He had hopes for an arranged marriage but he didn’t want “to find a gold digger, we have to go on trust.” In March 2010 he told Ms Makda that he saw Jubair getting married in the future, although he said he would have to mention to the prospective bride’s family about Jubair’s accident; and he wanted to make sure that Jubair got “the right girl and not someone who will just marry him for the money.” (Footnote: ⁶²) In June 2010 he told Dr Bradley that he had “a great deal of concern about finding a wife for Jubair”. He explained that he would normally hope to find a wife for his sons at about the age of 25 and that he was hoping that with time and further rehabilitation Jubair would be “acceptable as a husband.” (Footnote: ⁶³) In October 2011 he had told Ms Phillips that it was then the family’s intention that Jubair should also find a partner through that means, though obviously the family had to take into account his vulnerability and other issues affecting his future (Footnote: ⁶⁴). In June 2012 he told Ms Makda that some interest which had been shown earlier had gone away and, when he had made enquiries more recently, no one had shown interest in Jubair (Footnote: ⁶⁵)

I make relevant findings about this later.

The Court was presented with a considerable body of expert evidence covering the usual disciplines that are engaged after an accident that causes significant orthopaedic and brain injuries. The experts engaged by the parties largely overlapped and there was, in most cases, a considerable degree of agreement, recorded in joint statements, though some further divergence emerged at trial. It is therefore convenient to review the salient aspects of the evidence taking overlapping disciplines together and starting with the areas of agreement in the joint statements. I consider the evidence of the experts in the following order:

Mr Handley and Mr Jackowski provided three joint statements, dated 15 February 2010, 23 May 2011 and 18 June 2012. They were agreed that Jubair had suffered a serious injury to his spine which consisted of a burst fracture of L1 with a degree of retropulsion of the posterior body narrowing the canal to 50%. There was also a split of the spinous process of L1 and a fracture of the pedicle vertebral body junction on the left of the twelve vertebrae. The fracture was unstable. There was no clear evidence of any injury to the spinal cord or nerve roots in relation to his spinal injury at L1. In their first joint statement they noted that the medical records showed the Jubair had complained of back pain with severe back pain disturbing sleep being noted in January 2009; and that it was noted at the time of surgery in December 2009 that although the metal ware had become loose, the fracture appeared to have stabilised satisfactorily. In their second joint statement they agreed that Jubair had a very positive response to his protracted rehabilitation at Banstead and that he had, by May 2011, reached a plateau of improvement with regards to his spinal injury. Both experts agreed that “medical supervision” of continued rehabilitation of his spine was not required, but that further encouragement to maintain activity levels was appropriate following his clear-cut response to management at Banstead. Their view was that the need for this supervision did not arise as a result of the spinal injury but as a result of his head injury. The experts were agreed that the spinal injury would make Jubair unfit for any heavy manual occupation or for any occupation that required prolonged sitting without an ability to get up and move around. They considered that he would be slightly restricted about the house and home in terms of the heavy aspects of DIY, decorating and heavy gardening, if such were applicable to his expected lifestyle in the future. The experts noted changes on the CT scan of Jubair’s skull related to the left occipital condyle and agreed that it would result in a slightly stiffer neck in axial rotation with ageing.

In their last joint statement, shortly before the present trial, the experts were agreed that there had been a very positive response to continued physiotherapy and the use of the gym by Jubair, though neither expert believed that Jubair had become fully fit in the normal sense of a young man in his 20’s. They were agreed that Jubair must continue to do exercise to maintain his spine in its best condition on a regular basis throughout his life. Any need for continuing supervision and support was to be determined by reference to the experts giving opinion on his head injury. The experts reported that Jubair continued to suffer static painful stiffness when he is inactive, particularly in the mornings. Having reviewed the contemporaneous imaging of Jubair’s spine the experts agreed that further surgical intervention should not be undertaken but that the residual state of his lower back would continue to produce low back pain.

Mr Handley had produced three reports, dated 15 February 2010, 23 May 2011 and 18 June 2012. His first report was shortly after Jubair had undergone the surgery to remove the metal work from his spine and was at a time “when it became clear that [Jubair] was totally unable to give an accurate history of his orthopaedic problems…”. In general terms, Jubair told Mr Handley that he had back pain continuously, of an episodic nature. Mr Handley’s opinion was that Jubair had failed to “get going” in the early stages because his orthopaedic injuries were totally overshadowed by the head injury, and that the combination of the persisting deformity and the lack of early mobilisation had resulted in Jubair getting a poor outcome of the spinal fracture. By the time of Mr Handley’s second report, Jubair was at Banstead. Mr Handley recorded the current symptom picture as including early morning painful stiffness, which was better than before but had not disappeared, static painful stiffness and exercise induced pain. His view was that Jubair would need some maintenance physiotherapy long term to ensure that he remained as secure as possible with regards to the spine and that Jubair’s spine was “at risk” from further insult or injury. His third report was about a year later. Jubair told him that he went to the gym twice a week usually, and that he never went unaccompanied. His support worker was supervising the exercise regime to make sure that he did all the exercises and did them correctly. Mr Handley’s view was that the gym routine was conducted at a relatively leisurely pace. He noted a history of insecurity and loss of confidence in the back with the history of occasional falls which had historically upset his back for a significant period. His back was still causing him difficulty in getting to sleep and in getting back to sleep if he awoke during the night, which happened quite frequently. The complaints of early morning painful stiffness, static painful stiffness and exercise induced pain continued including the comment that walking any distance provoked back pain. Sudden or injudicious movement could cause a catching pain in the spine; and sneezing could also cause sharp sudden pain. Forward and lateral flexion was reduced, as was straight leg raising on both sides. Mr Handley’s final prognosis was that Jubair, having never enjoyed a pain free interval from his back pain since the incident, could expect no further real improvement. He supported continuing gym based exercise and continuing physiotherapy.

Mr Jackowski provided five reports, dated 18 March 2009, 20 March 2010, 6 October 2010, 28 September 2010 and 6 September 2012. In his first report (based on an examination in November 2008) he listed as a current complaint that Jubair complained of ongoing pain at the sight of the fracture and said that the pain could wake him at night and made it difficult for him to sit for long periods. He was experiencing some discomfort in his neck but not the level that he experienced in his lumbar spine. Mr Jackowski was told that Jubair was mobile without aids and could get up and down stairs. He had been able to use public transport but would normally be accompanied either by family or by friends on public transport. In Jubair’s absence from the room, Mr Ali told Mr Jackowski that Jubair had significant bowel and bladder problems which Jubair was too shy to mention. He said that this had been a constant every day problem when he first left hospital but had now improved so that an episode of urinary of faecal incontinence would occur perhaps once every two to three days; it was more likely to be urinary than faecal leakage. During the interview Jubair appeared to tire easily and at one point his eyes appeared to close. Mr Ali confirmed that he would frequently fall asleep even when watching television programmes at home. On examination forward flexion was touching knee caps and on lateral bending he could touch either kneecap. On examination of the upper limbs, Jubair appeared to have difficulty understanding Mr Jackowski’s comments. However power of the upper limbs was within normal limits. Power of the lower limbs was within normal limits. The left patella reflex was diminished and the left ankle jerk was absent. Taken overall Mr Jackowski’s view was that the majority of Jubair’s disability and impairment past and present, arising out of the accident were the result of his brain injury. He strongly recommended attendance at Rehab UK and an up-to-date neuropsychometric assessment in order to gauge his future vocational prospects.

His second report was a review of radiological records and requires no further comment. His third report was one month after Jubair had started at Banstead. Mr Jackowski formed the clear impression that Jubair’s short term and long term memory were significantly improved over when he had seen him in 2008. On clinical examination, Mr Jackowski noted a mixture of dysarthria and a degree of expressive dysphasia; but he was much more conversational and appeared more confident than on their previous meeting. Mr Jackowoski had to concentrate hard to understand his speech at times but felt that he communicated effectively to the sympathetic listener. There was no significant alteration of spinal or neurological examination. The next report was nearly a year later, shortly before the liability trial. Jubair was by now not wearing any external brace. He continued to complain of pain in his back as previously. Once again Mr Jackwoski felt that his communication skills and speech had improved. Mr Jackowski was told that, from the physical point of view Jubair was capable of getting out and about, using stairs, and using public transport. The limiting factor was said to be his ability to remember what to do and where to go. He was said to be generally continent but experiencing frequency and, in situations of anxiety or delay may have occasional accidents. On clinical examination Mr Jackowski recorded that he now had no difficulty understanding Jubair’s speech. He appeared brighter, more expressive and his understanding and communication had improved further. There was no change in the findings on spinal examination. On neurological examination there was an improvement in power since a slight weakness in hip flexion was now no longer noticeable. Left ankle jerk remained absent. Mr Jackowski’s view was that Jubair had reached a plateau in terms of his recovery from the spinal injury and subsequent surgery.

Mr Jackowski’s final report was some nine months later, shortly before the quantum trial. The situation remained much as before save that Jubair now said that he had less back pain when he kept moving and was on the go. The continence problems had improved somewhat. Jubair said that he regarded his poor short-term memory and lack of confidence and getting disoriented as a limiting factor in his ability to travel out of the house on his own. On clinical examination Jubair appeared to be much brighter than when he had been seen before. He was smiling spontaneously and it seemed to Mr Jackowski that his memory had improved. He was easier to communicate with than on any previous occasion. As well as understanding Mr Jackowski’s questions regularly he engaged in conversations and asked questions readily on his own as to Mr Jackowski’s wellbeing. He was noticeably fitter and healthier than when Mr Jackowski had seen him last. There was no material difference upon spinal examination or neurological examination. Mr Jackowski’s opinion was that he had continued to make progress both in his general affect and his general levels of fitness. Surprisingly, Mr Jackowski referred back to Jubair’s pre-accident school record, offering the opinion that “this would naturally have limited his occupational ability”. In terms of further management of his spine, Mr Jackowski did not feel he needed any further review of supervision but advised that “he should continue to be encouraged to go on an ad hoc basis up to twice a week to do either swimming or some form of regular activity in a gymnasium.”

In the light of their broad agreement Mr Handley and Mr Jackowski gave brief evidence at trial. Both deferred to the expertise of others as to whether or not Jubair would need supervision on his regular attendances at the gym over the years to come. Mr Jackowski regarded supervision four times a year as “overkill”, emphasising the routine and basic nature of exercising in a gym. He did not think that supervision by a neurophysiotherapist was necessary to prevent Jubair doing too much in the gym because, if he did too much, he would experience significant increase in pain levels and would now have sufficient insight to draw back.

Dr Williams and Dr Foster provided two joint reports. The first was made in March 2010 and was substantially superseded by the second, which they prepared in December 2011. In that joint report they agreed that Jubair had received a severe brain injury as a consequence of which he had been left with some physical, communicative and cognitive problems. His physical problems included some residual ataxaia dysarthria. His communication problems were agreed to be the result of both pronunciation and articulatory imprecision. The doctors acknowledged that it had been difficult to determine the level of Jubair’s cognitive problems, noting that there may have been an element of exaggeration and illness behaviour which had made the interpretation of his cognitive skills controversial. Despite that they were agreed that Jubair had continuing problems with his memory and with attention, planning and problem solving.

Under the heading “Therapeutic needs” they agreed that it seemed very unlikely that Jubair would ever live entirely alone and that domestic chores were likely to be carried out by female members of the household. They agreed that he was therefore unlikely to benefit from occupational therapy input unless he was considering living independently, which seemed extremely unlikely. They agreed that Jubair would benefit from access to physiotherapy to initiate his fitness programme and suggested that six sessions over the following year would be appropriate. Thereafter there should be twelve physiotherapy sessions a year from the age of fifty. They considered that Jubair was unlikely to benefit himself from speech and language therapy. In relation to the need for support, they agreed that “[Jubair] appears capable of getting out and about in the local community and is able to enjoy a social life with his friends”, and noted that “while at Banstead [Jubair] was able to shop independently”. Dr Williams now agreed with Dr Foster that Jubair did not need support at all times, but that in accessing new and unfamiliar environments he would benefit from a support worker, at least until he has familiarised himself with journeys and routines. They agreed that Jubair’s need was for flexible support and that the over provision of support could be counter-productive. Their agreed position at that time was that provision should be made initially for about ten hours of support a week, used flexibly, although in the longer term this provision was likely to reduce as his independence increased, he developed routines and he engaged in rewarding activities outside the home. Having agreed that Jubair’s recent records “suggest that he has some educational ability which should be explored”, they agreed that involvement in a practical course would be in his interests with respect to his future life and the possibility of him undertaking some form of work. They agreed that “it would be beneficial for [Jubair] to find some work if possible, probably at a low level, although this is likely to be voluntary and therapeutic rather than remunerative”. His life expectancy was then stated to be 57-58 years, to the age of 80-81 years. This was before his epilepsy had been confirmed.

Subsequently Dr Foster prepared a joint statement with Dr Wade on 4 October 2012. They agreed that there had been inconsistencies in Jubair’s physical presentation and that it was difficult to determine the level of Jubair’s cognitive problems, Dr Foster noting that there had been features of exaggeration and illness behaviour and that Jubair had failed tests of effort and symptom validity when undergoing formal neuropsychometric testing. While largely deferring to neuropsychological expertise they were agreed that it was likely that Jubair had some neuropsychological problems arising from brain injury, which may be less than some of the evidence suggests. They considered he should be capable of returning “at least to the level of independent activity that he was capable of while at Banstead” and they noted that, in their view, he was now doing much less than he had at Banstead, which suggested that the current therapy regimen was not working. Jubair had by now developed post traumatic epilepsy. There was agreed to be a 50% chance of complete seizure control and approximately a 70% chance of either good or complete control, with a 30% chance that his seizures will not be well controlled. With respect to Jubair’s need for future support the doctors wrote “we note that he appears capable of getting out and about in the local community independently and enjoying a social life with his friends. He has been able to study effectively at College without support worker input. We agree that it is difficult to assess [Jubair’s] true requirements; we defer to neuropsychology and care expertise with respect to quantification of this issue, and note that because of the discrepant evidence in this case, conclusions in this regard will be based more on assessment by the court of matters of fact rather than expert medical opinion.” Their view was that Jubair would benefit from vocational engagement which would help to structure his week, improve his self esteem and provide opportunities for socialisation outside the home. Their view was that Jubair’s employment prospects are likely to be restricted by virtue of his brain injury, but that it is difficult to judge the extent of those restrictions. Their joint view was that there was a modest reduction in Jubair’s life expectancy.

I deal with Dr Williams’ reports in tandem with those of Professor Collin.

Dr Wade provided two reports, the first being dated 18 October 2011 and the second 7 August 2012. His first report was based upon examination of Jubair, who was accompanied by Ms Jeffreys and review of documentation. Continuing symptoms were reported to include that Jubair would sometimes use public transport but only when he knew exactly where to get off and only if there was someone waiting for him at his destination. It was said that he did not travel around London by himself. Ms Jeffreys reported that distractibility was his main psychological problem. He could not develop strategies to deal with new problems; he expressed enthusiasm for certain proposed activities but could not discipline himself to make things happen. On examination he appeared very distractible and could not sustain a conversation about anything other than Manchester United. Dr Wade’s opinion was that his head injury had given rise to neuropsychological dysfunction which will now persist without any real hope for further spontaneous recovery. His view was that gains from ongoing rehabilitation were likely to be small. His view was that Jubair had a frontal lobe syndrome giving rise to distractibility and a dysexecutive syndrome, both of which would have a profound and sustained impact on his employability and capacity. At that stage he would consider him unemployable unless supervised on a one to one basis. Dr Wade’s second report was based upon a further examination, when Jubair was again accompanied, and a review of documents. His stated opinion was that there had been some progress but that Jubair remained dependent on relatives and carers for all excursions outside his house.

Dr Foster provided eight reports between October 2008 and September 2012. During that time he examined him on 7 October 2008, 11 October 2011, and 4 July 2012. His first report was based upon the first examination, which Jubair attended with his father, and a review of documentation. At the time of the examination Jubair was attending Newham College. Dr Foster recorded being told that Jubair got a lift to College either from his father or from friends and that “he is able to go out to the shops and can travel on public transport on his own, but usually goes out with friends. He is independent with respect to personal care apart from some tasks such as doing up his shoe laces which he finds difficult because of the pain in his back when he bends. He sleeps poorly and wakes because of pain in his back. He has difficulty sitting for long periods and he will need to stand up because of his back pain.” On examination Jubair presented as a somewhat distractible young man with slurring dysarthria and reduced rapport. The impression was of significant cognitive impairment and distractibility. Dr Foster’s opinion was that Jubair had suffered a very severe brain injury which had left him with significant residual impairments which Dr Foster regarded as “entirely unsurprising” although he noted that the severity of an initial injury does not correlate well with long term outcome. At that stage he thought that Jubair would be able to live independently and work full-time in some capacity.

His second report commented on Dr Williams’ report which he regarded as broadly concordant with his own. His third report, in December 2009 comprised a review of documentary records, including medical and educational records, which suggested to Dr Foster that Jubair had “significant impairments following his brain injury. The records suggest that he had low educational attainment prior to the index accident with significant problems with illiteracy.” He remained of the view that Jubair had the potential for independent living and employment but deferred more detailed comment to await the outcome of updated neuropsychometric assessment. His fourth report, in January 2010, reviewed various witness statements which led him to comment that mood, disturbance and pain appeared to be significant factors which may contribute to Jubair’s reported neuropsychological differences.

Dr Foster’s fifth report was based upon his second examination, which was held on 11 October 2011 when Jubair was accompanied by Ms Jeffries. Jubair told Dr Foster that he was still suffering from headache and back pain every day, for which he took Ibuprofen and Paracetemol. On examination Jubair reported reduced sensation in the right arm and leg; Dr Foster noted that when he had first assessed him the sensory testing had revealed impairment of vibration sensitivity in the left leg. Dr Foster carried out a further review of documentation including the Banstead reports. He noted a number of adverse comments in Jubair’s educational records while making no reference to the more positive aspects have been recorded: it is not clear if this was because Dr Foster made a partial selection or because he did not have all of the relevant records. After a review of witness statements and medical reports Dr Foster’s opinion represented a hardening from that which he had previously expressed. He contrasted Jubair’s report of relatively limited gains from his time at Banstead with the content of the Banstead reports which suggested more substantial gains. He noted the absence of any mention of continence issues in the Banstead reports, contrasting this with Dr Walton’s report and with a reference to constipation in the GP records. He identified the inconsistent presentation of sensory loss when he had examined Jubair. He pointed to other matters which he regarded as inconsistencies in the evidence regarding Jubair’s independent living skills and capabilities, recording that “on the one hand it appears that he is able to access the community independently and has maintained an active social life. On the other hand the report of Karen Jeffreys suggests that he has quite marked limitations and would require support in accessing the community.” Dr Foster considered that this may reflect illness behaviour and/or learned independence to organic brain injury. He supported the estimates of care requirements given by Ms Makda (the Defendant’s care expert), saying “if for cultural reasons, [Jubair] is likely to stay living with his family, and is able to access the community independently, and maintain an active social life without support, then his principle requirement is for gratuitous care from his family, with possibly some targeted support worker input related to developing a programme of structured activities outside the home, either at College or some form of employment”. Referring back to the references from the educational records which he had cited, he expressed the opinion that “his vocational prospects are likely to have been very limited because of his poor educational performance in the absence of the index accident.” However he had no doubt that Jubair’s employment prospects had been further compromised by the brain injury and observed that it would be psychologically beneficial for him to engage in work. On capacity Dr Foster expressed concerns about Jubair’s level of insight and judgment.

Dr Foster’s next report involved a review of bank statement’s and other transactional records and Dr Williams’ report of October 2011. His comments make clear that he regarded the Banstead records as indicating that “he was able to access the local community independently during his rehabilitation, showing good road safety awareness and was able to shop independently. This is supported by the bank statements (with the provisos noted above)”. (Footnote: ⁶⁶)

Dr Foster’s seventh report was based upon his third examination and a review of further evidence. It was dated 14 October 2012. By now Jubair had been diagnosed as epileptic. He presented with significant dysarthria. He seemed a little inhibited but there was generally good rapport. On this occasion he reported no sensory changes on examination. In giving his opinion, while accepting that Jubair “has undoubtedly suffered a severe brain injury”, Dr Foster drew attention to what he regarded as the substantial inconsistencies in the evidence concerning Jubair’s capabilities. “There is a substantial inconsistency between [Jubair’s] presentation to those involved in his rehabilitation and care, and his ability to pass College courses up to Level II, access the community independently, maintain a social life and undertake numerous financial transactions as he pursues his activities of daily living including social and recreational activities. Such evidence supports the contention that [Jubair] is quite independent.” He also noted the inconsistencies in Jubair’s physical presentation on examination. While accepting that Jubair might need psychological support, Dr Foster expressed the view that the current therapy regime was not working, that occupational therapy input was unlikely to be of further assistance, that his language deficit is stable and will not respond to speech therapy, and that he no longer required physiotherapy. The general thrust of Dr Foster’s opinion was that “Jubair is much more independent than the recent evidence would suggest. He is capable of getting out and about into the local community and enjoying a social life with friends. He was able to shop independently whilst at Banstead. He is able to undertake College courses and pass them.” He thought that Jubair was capable of some form of employment, “though this might well be voluntary or therapeutic rather than remunerative.” He now was more hesitant on the issue of capacity saying that he was no longer able to determine whether Jubair was incapable of managing his legal affairs.

Dr Foster’s eighth report, in September 2012 adds little of substance. His ninth report, dated 28 November 2012 reviewed Jubair’s Facebook entries, telephone records, bank records, daily support records and updated witness statements. He regarded the evidence as suggesting that Jubair had a good level of motivation, communication, computer and social skills so that he was either able to pass the citizenship test unassisted or, if the account of his cheating was accepted, had a combination of great manual dexterity, forward planning, executive ability, high intelligence and an ability to withstand very high levels of stress.

Dr Wade was cross examined about capacity with particular reference to the citizenship test. He accepted that, if Jubair had planned and sat the test on his own that showed initiation and planning; and that passing the exam would show a greater level of ability than he had assumed in that particular area. But he did not accept that the citizenship test provided a comprehensive test of frontal lobe function (Footnote: ⁶⁷). Equally he was not sure that it was a useful test for testing capacity, offering the opinion that, if he befriended Jubair, he could persuade him to part with a substantial sum of money. When taxed with the citizenship test, he gave his overall view of Jubair based on a review of all of the evidence. He clearly saw the record of how the visit to Torquay had gone as important and said that he could not believe that Jubair had invented “a parallel world” since to do so he would have to be “extraordinarily bright”.

Dr Foster disagreed. In his evidence he expressed the view that the ability to sit and pass the test or to sit and cheat and pass suggested a level of ability to form strategies, plan, assimilate information and respond to information. He regarded the citizenship test as being supportive of his views though it is not a test of capacity. With a brain injury such as Jubair’s he would expect there to be some impairment though he qualified this by saying that the best evidence would be neuropsychological evidence, if it is reliable. He found the case puzzling because on his reading of the evidence Jubair appeared to be more independent before going to Banstead than after and, although there was some improvement at Banstead it was not as great as he would have expected. He supported activities outside the home as being beneficial and summarised his view on the need for support as being that there was a limited need, reducing over time, depending upon the availability of help from his family or a spouse. But he accepted that he would need an increase in support to cater for unfamiliar circumstances, giving the examples of going for a job interview or moving house.

Dr Bradley and Dr Gill provided three joint statements, dated 16 November 2010, 16 November 2011 and 26 October 2012. They agreed that this is not “a psychiatric case” in the sense of being a case dominated by psychiatric considerations. They noted in their first joint statement that there had been some low mood and irritability and some other psychological difficulties since the “very severe” accident. They thought that these difficulties had fluctuated and were diagnosable as a relatively mild adjustment disorder attributable to the accident. It would not, of itself, have caused functional limitation and his psychiatric difficulties would not preclude him from continuing with whatever work, training or education might otherwise be suitable. At the time of their first joint report, Jubair had recently started at Banstead. They were agreed that residential rehabilitation could have the advantage of separating Jubair temporarily from his family who, it appeared, tended to be somewhat overprotective. That said, they noted that cultural factors could be associated with a lifestyle which involved living with the extended family on a long term basis in any case, so that questions of functional independence would need to be considered sensitively. One year later, in November 2011, the experts held to their previous statement. They considered that the episode of psychological symptoms towards the end of his time at Banstead were probably a reflection of depression and anxiety but not part of a psychotic process. They considered that Jubair should continue to be monitored by NHS Mental Health Services to make sure that the symptoms did not recur. Their joint view was that Jubair is likely to remain vulnerable to further episodes of depression when under environmental pressures and that he would be helped by continuing neuropsychological input and a support worker. While they thought that his presentation had probably at some stages been affected by the pressures of ongoing litigation, at least to some extent, from the psychiatric standpoint they had not developed concerns that he was deliberately seeking to influence the clinical presentation for gain.

In their third and final joint statement they considered that, since their joint statement of 16 November 2011, Jubair had probably not been diagnosable with any psychiatric condition. They considered that his reaction to the further medical adversities (including epilepsy, Stevens Johnsons syndrome, and gallstones) showed a degree of overall resilience. Their view was that neither his intellectual functioning nor his work capacity would be restricted or impaired by problems of a psychiatric nature. Equally, there were no psychiatric reasons which would prevent him from managing his finances or carrying out normal everyday activities. They noted that there had been some variability in his presentation, for example during the neuropsychological assessments. They would not be able to account for such variations on psychiatric grounds.

Dr Bradley produced five reports and two letters providing further information. The reports were dated 16 June 2010, 19 July 2011, 23 September 2011, 23 October 2011, 6 July 2012. The two further letters were dated 15 August 2012 and 20 November 2012. At the time of their first meeting in mid 2010, Jubair presented rather passively. He appeared demoralised and unassertive and Dr Bradley therefore asked him to complete the Beck Depression Inventory. This is not in itself a diagnostic test but gives a patient an opportunity to indicate a range of psychological symptoms and their severity. On this test he scored 45 which is in the severe depression range (severe depression = 30+). The scatter of responses was consistent. Mr Ali appears to have taken the lead in giving the account of Jubair’s present condition. He told Dr Bradley that Jubair could not be relied upon to do simple errands when going to the corner shop about 100 yards away from the home. The family were said to be anxious about him going out alone for any distance and he was usually accompanied by a family member or a friend which was even the case when he was attending college between September 2007 and July 2009. Jubair told Dr Bradley that the discomfort from his back interfered with his sleep and that he also suffered from urgency of micturition and may be incontinent a few times each week. Amongst Dr Bradley’s conclusions were that Jubair suffered from a moderately severe depressive episode which was related to his reaction to his physical symptoms and cognitive impairment. Dr Bradley considered that he would benefit greatly from a residential rehabilitation course; and at that time, while he continued to show depressive symptoms, Jubair should be regarded as lacking capacity under the Mental Capacity Act 2005.

Dr Bradley’s second report was a year later by which time he had held a detailed discussion with Dr O’Brien about Jubair’s progress at Banstead. One surprising feature of the interview with Jubair was that he was unable to remember seeing Dr Bradley before, which Dr Bradley thought was understandable as he had been exposed to a large number of experts carrying out examinations. Dr Bradley reviewed the reports of others, agreeing with those who formed the view that he did not have the ability to cope with dealing with large sums of money. By this time Dr Walton had expressed the view that Jubair had shown himself willing to deceive those trying to assess him. Dr Bradley’s view was that this has been refuted by the observations carried out at [Banstead] over the last 10 months. His conclusions included that Jubair’s insight had improved to the extent that he was more realistic about the future and the extent of his disability. Dr Bradley considered that Jubair would continue to require neuropsychological input and community occupational therapy support. He repeated his view that Jubair lacked capacity.

In his third report Dr Bradley reviewed the risk assessment from Banstead, picking up the observation that Jubair had a debit card which he used regularly. That did not alter Dr Bradley’s view that Jubair continued to lack capacity in terms of dealing with complex financial affairs. His fourth report, shortly before the liability trail was based on a further examination. Dr Bradley concluded that although he had benefited from his stay at Banstead it was important that he should remain in contact with the community medical health team and a neuropsychologist. Dr Bradley considered that the availability of a trained support worker would best maximise his potential for a constructive lifestyle independent from his family, but he was doubtful whether in the foreseeable future Jubair could safely live alone without external support. He remained of the view that Jubair lacked capacity and considered him to be unemployable and likely to remain so for the foreseeable future. His fifth report was based upon a further examination which took place in the afternoon of 14 July 2012. When Jubair met him he said “ I thought you were Dr Gill”, which was strange as Jubair had seen Dr, Gill that same morning. It appeared to Dr Bradley that there was a general consensus that Jubair needed more independence from his family. It was Dr Bradley’s view that he would never achieve full independence and that there was no realistic prospect of his being able to train for or hold down any form of full-time employment, though it may be possible for him to work in a supportive environment on a part-time basis at some time in the future.

The first of Dr Bradley’s supplementary letters was a response to the report of Dr Walton dated 31 May 2012. I return to this aspect in the discussion section below. His final letter followed a review by Dr Bradley of Jubair’s Facebook pages and bank statements and the photographs included in them. Dr Bradley’s opinion was that they did not suggest that Jubair was showing any greater cognitive ability than had been revealed in his clinical examinations and the neuropsychological reports of Dr Powell. Dr Bradley observed that Jubair seemed to have made some identification with the head-injured patients that he had met both at Banstead and Headway, an observation endorsed by Ms Phillips (Footnote: ⁶⁸). In his view the pages did not imply that he had a close circle of friends or that he had anything other than very superficial skills. I make clear immediately that I agree with both those assessments.

Dr Gill provided three reports and three supplementary letters. His reports were dated 15 October 2010 (based on an interview in July 2010), 31 October 2011 and 24 August 2012. His supplementary letters were dated 12 November 2010, 22 November 2011 and 29 November 2012: they do not add materially to the overall body of evidence and do not require further mention here. In his first report, Dr Gill gave an account of his interview with Jubair. He was told that Jubair went with his friend on the bus during his first year at Newham and that a different friend helped him during the second year. Jubair told Dr Gill that he had pulled out of Newham two years later as he was unable to continue his studies because of his back. When asked how he spends his time, Jubair said that he watched TV, listened to music, went out to the local shops, or to his mate’s house nearby. Friends would come and visit him. He said that he was able to go out by himself “but if I got well, they are not going to pay me.” Perhaps unsurprisingly in the light of that remark, Dr Gill did not form the impression that Jubair had a very cautious approach to the interview or that he was seeking to manage the impression that he made. Dr Gill considered that Jubair seemed fully aware of the nature and purpose of the interview. Dr Gill formed the view that Jubair’s psychological symptoms probably constituted no more than an adjustment disorder - a view with which Dr Bradley came to agree. Dr Gill was asked specifically about capacity. In that context he recounted a rather bizarre conversation with Jubair when he asked Jubair how he would weigh up an amount of money that he might be offered by way of compensation. The answer demonstrated a lack of clarity about what might be involved. As a result of his interview Dr Gill formed the view that, while Jubair had the capacity to manage small sums of money on a day to day basis, he did not have the capacity to manage large sums. Because of impulsivity, Dr Gill considered that Jubair should be regarded as lacking capacity to litigate or manage large sums of money.

In his second report Dr Gill commented that Jubair seemed rather brighter than when he had seen him before. He said that he would like to live on his own one day and be independent. He also said that he would like to get married and have children and also adopt children. In summary Dr Gill considered that there had been some overall progress of a general rehabilitative nature. His opinion was that the psychiatric aspects of Jubair’s case had been relatively minor.

For the purposes of his third report, Dr Gill reviewed a substantial amount of the material that had now been generated either in the course of Jubair’s treatment or for the purposes of the litigation. It did not materially affect or advance his opinion.

The evidence of the psychiatrists at trial was limited in scope. Dr Bradley’s evidence was that they could not explain how Jubair could have passed the citizenship test without assistance, this being on the basis of the assessment that each of them had formed over two years. However, he rejected the suggestion that passing the test would demonstrate that Jubair had capacity because, in his view, capacity requires judgment which Jubair continues to lack. While accepting that his lack of capacity was not caused by specifically psychiatric difficulties, he maintained that he was entitled to hold and express the view that he had on capacity. He remained of the view that Jubair’s presentation to him was genuine. Dr Gill agreed that Jubair’s condition would affect his mood, and that his mood would fluctuate. He also accepted that there was not much to get his teeth into in Jubair’s Facebook entries: I agree.

Dr Powell and Dr Walton provided three joint reports. The first was dated 2 April 2010, before Jubair went to Banstead. They agreed that he had sustained a severe traumatic brain injury and that, on the balance of probability, there would be a neuropsychological deficit as a consequence of such an injury which would probably impart disadvantage in the areas of employment and social function. They agreed that Jubair had not co-operated with the assessment process and had failed symptom validity testing in a profound manner when seen by each of them. They were unable to determine the motivation underlying that failure but agreed that failure at the level demonstrated by Jubair rendered all other test results obtained at the same time unreliable and that it was probable that whatever scores were obtained underestimated his real level of capability. They considered that the fact that he had been able to attend college and pass his courses provided a level of optimism in relation to his residual abilities. In their opinion, he was probably of only low average ability pre-accident and the injury will have compromised that level of ability to a degree, and thus his potential of future employment had probably been compromised to a degree. They expressed the view that he was barely of a sufficient calibre to enter the police force prior to the accident, though they acknowledged that they did not have a good understanding of the standards required by the police in current times.

Their second joint report was dated 1 December 2011, after Banstead, and was generally in line with their first. They agreed that the outcome from even severe traumatic brain injury is variable with some individuals improving markedly and doing well, while the majority fail to flourish. Frequently severe traumatic brain injury results in problems with attention leading to forgetfulness, slowed information processing abilities, reduced working memory, difficulties with planning, organisation and decision making in relation to complex behaviours and often these cognitive problems are compounded by a degree of behavioural change, either of a disinhibited nature or a flattening of emotional response. They considered that his poor performance on SVTs had an atypical profile in some areas of cognition and that on the balance of probability this was reflective of exaggeration. It was their agreed view, however, that he nonetheless probably had problems in the domains tested. They agreed also that, were the court to find that Jubair was faking a level of deficit, there would nonetheless be real deficit underlying the exaggeration. While being cautious about their ability to offer a definite prognosis, they agreed that it was probable that Jubair would prove incapable of work and that he would probably require a level of support consequent upon his injuries. Their recorded areas of disagreement included a divergence upon the extent to which Jubair’s unreliable performance on psychometric testing should dominate their views. Dr Powell emphasised the need for the neuropsychologist to give an opinion based on the “broad picture” rather than focusing specifically on psychometric test results, specifically SVTs. Dr Walton was much more sceptical about the ability of clinicians to form a valid opinion in the presence of psychometric data which indicates that Jubair has not being giving of his best in testing. He regarded the psychometric data and other aspects of the evidence which he considers show inconsistencies as demonstrating “a volitional response that is essentially dishonest, on the balance of probabilities, is intended to mislead the examiner and may very well be motivated by a desire to maximise the claim.”

Their third and final joint report was dated 23 October 2012, shortly before trial. In it they addressed three specific issues namely:

I deal with the question of statutory capacity later. On the question of capacity for work, the experts were agreed that Jubair would experience difficulty working in the open competitive market although he is probably capable of therapeutic or voluntary work and should be encouraged to undertake it. On the question of the care package, the experts views were largely determined by their understanding of the historical evidence. However they agree that he had not made the advances in independence that might have been hoped for in the relatively high level of rehabilitation input that he had received. While they agreed that Jubair had shown himself, at times, capable of independent use of public transport, Dr Walton emphasised his view that Jubair had not engaged with support with any degree of enthusiasm or effort. They were agreed that the overall history suggests that his support needs could be reduced in the future but that there will be long term case management and support needs which they felt unable reliably to determine. Their joint view was that Jubair would function best in the future within a structured, meaningful routine and in order to establish and maintain this he would need some outside help or “enablement”.

Dr Powell provided five reports dated 4 January 2010, 6 September 2010, 26 September 2011, 18 June 2012 and 30 November 2012. On the first examination Jubair complained of physical difficulties including back pain, grip strength, balance, fatigue and tiredness, sleep disturbance, and occasional incontinence; he also complained of cognitive difficulties with memory, poor concentration, reduced executive skills, difficulties with word finding and speed of processing. Dr Powell’s psychometric testing led to a predicted pre morbid IQ in the low average range. Jubair failed the SVTs that were administered. On tests of memory, speed of information processing, attention, executive skills and word finding, Jubair performed very poorly. On the hospital anxiety and depression scale, Jubair scored twenty one for anxiety, which is the highest possible score, and fifteen for depression, which would place him in the clinical range. He said that he was worried about his back, slipping, tripping, getting lost, being incontinent, losing the ability to have conversations with his friends, and how he was going to look after himself in the future, particularly when his parents were not there. Dr Powell concluded that he was left with a number of residual physical, cognitive and temperamental difficulties (including occasional problems with incontinence) which he regarded as typical sequel to a very severe head injury. He noted that Jubair’s poor performance on the SVTs meant that his performance on psychometric testing may not be representative of his true level of ability. However he expressed the view that Jubair’s short term verbal and spatial memory was severely impaired and that the overall picture was one of general cognitive impairment, particularly in the area of short term memory, speed of processing and executive skills. He noted signs of impulsive behaviour and considered it likely that Jubair had a lowered tolerance of frustration at which, again, was a typical sequelae of a severe brain injury. He strongly recommended a period of vocational rehabilitation such as offered by Rehab UK or Banstead, and considered that a realistic rehabilitation goal might be to attempt activities of daily living such as cooking, shopping and being more independent. He did not consider that Jubair had the mental capacity to manage any large sum of money or manage his own financial affairs.

Dr Powell’s second report was largely consistent with his first. When Dr Powell raised the question of the SVT performance with him, Jubair had responded “I am not a criminal, I am a good guy. You are making me out to be the bad guy.” Even when appearing to try his hardest he failed the effort test albeit at a much improved score on previous testing. Dr Powell’s view was that his failed score was not a reflection of poor effort but was a result of poor memory, easy distractibility, poor attention and impulsivity. Dr Powell once again noted impulsive and disinhibited behaviour. On psychometric testing his results again indicated severe impairment.

Dr Powell’s third report was after Banstead. He reviewed a number of other medical reports and records, including the discharge summary from Banstead. Once again Jubair failed the effort and symptom validity tests and performed extremely badly on testing of memory, speed of information processing and executive skills. In giving his opinion Dr Powell noted that all centres had reported that Jubair had been a compliant and motivated attendee who had made some progress. His view was that Jubair had a classic array of profound residual disabilities due to his severe head injuries which affect him both physically, cognitively and temperamentally. He regarded the main physical disability as being his fatiguability and tiredness, which had a knock-on effect impairing his cognitive skills and tolerance. He considered that Jubair had little or no chance of finding and maintaining regular paid employment and that he was not capable of independent living. Despite repeated failures of the SVTs, Dr Powell’s view was that he was “more convinced than ever that he has a very severe brain injury and is severely disabled.” He did not think that Jubair had the mental capacity to manage his own finances or litigation.

On the fourth occasion that Dr Powell saw Jubair, in June 2012, Jubair commented that he did not remember Dr Powell but did remember having been to Reading. He yawned constantly throughout the interview in a disinhibited way and behaved in a way that was remarkably similar to the previous occasions that Dr Powell had seen him. He again failed the SVTs. Dr Powell was clearly troubled by this result which he accepted could be a reflection of exaggeration. He continued:

“However, to be so consistent in his presentation on four occasions, if he was deliberately exaggerating would suggest to me a level of intellect and cognitive ability that I do not think that [Jubair] possesses. The more I have seen [Jubair] the more I am convinced that his poor performance on cognitive tests is due to his cognitive impairment, cognitive style, temperament and motivation. ”

One area where Dr Powell had the impression that Jubair was exaggerating, was when he told of the extent of his social life at weekends. Dr Powell did not consider that he was capable of employment in the open competitive market. He considered it very unlikely that Jubair was capable of independent living: he would need a significant amount of support, or to live in supervised or sheltered accommodation. His view was that Jubair would benefit from a case manager, enablement and some clinical neuropsychology input. The goal of therapy should be to improve his independence from his family. He did not consider that Jubair had mental capacity.

Dr Powell’s final report contained reflections on Jubair’s Facebook usage, his bank account and telephone in relation to Facebook he noted that the majority of Jubair’s contacts were people from Banstead or Headway. His view was that, even in relation to Manchester United, his comments were “rather vacuous with little depth, knowledge or understanding, and little cognitive complexity. These are the comments of a brain injured man that reveals his poor cognitive ability.” He did not feel able to draw any significant conclusions from Jubair’s bank accounts or telephone records.

Dr Powell’s oral evidence covered five main topics:

Dr Walton provided nine reports dated 8 September 2009, 12 November 2009, 21 January 2010, 30 July 2010, 18 November 2010, 26 October 2011, 31 May 2012, 23 July 2012 and 28 November 2012.

Dr Walton’s first report was based upon an interview with Jubair and his father which was conducted some five months before the report was produced. Dr Walton recorded that Jubair presented as a “sullen and rather uncommunicative young man” who had yawned constantly and with whom he had found it difficult to establish any rapport. Jubair had made numerous comments to the effect that he was doing his best, which in Dr Walton’s view reflected a degree of conscious manipulation. His father had been at pains to impress upon Dr Walton the extent to which the family life had been disrupted and “he asked me to look sympathetically upon his son’s case.” At the time Dr Walton recorded “I am not convinced that this was anything untoward and it may simply be a manifestation of Mr Ali’s cultural background in which such things might be said.” As will be seen, Dr Walton subsequently put a different slant upon the comment. In his synopsis Dr Walton said that there was “no doubt that [Jubair] sustained a severe brain injury thus, on the balance of probability he will have cognitive and behavioural problems consequent upon brain injury as well as some reactive psychological problems. Those deficits are likely to result in forgetfulness, reduced attention, poor planning and organisation and either a reduced tolerance to frustration or apathy. The severity of those problems cannot be predicted in relation to an individual.” Jubair did not cooperate with the assessment process and Dr Walton considered that his scores upon the SVTs were so poor as to be below chance. Dr Walton identified a number of characteristics of Jubair’s responses including that he would follow regular patterns on multiple choice questions (e.g. 1212 or 111222) which meant that “it is improbable that he was attending to the items and it is reasonable to conclude that on this measure he exerted no sustained effort to solve the problems. This type of responding may arise out of apathy towards the test session. However it is equally likely that it reflects an intention to perform poorly and in the context of his performances above, I would say this was probable.” Dr Walton’s view was that “[Jubair’s] responses to symptom validly testing undoubtedly reveal a level of dishonesty in his presentation of his deficits in relation to both memory… and problem solving. It is not possible to know what underlies his behaviour.” On the basis of what he understood of Jubair’s capacity for independent travel and his completion of college courses to date Dr Walton expressed the view that he would be capable of some form of work and that his care needs would be low. In answer to a specific question about Jubair’s expressed intentions of joining the police Dr Walton said:

“This is difficult for me to answer as I have no knowledge of the requirements of joining the police force. However, my sense is that a low average intellect would not be a barrier to entry into the police force. I would say that generally the level of intellectual ability thought to exist in given population groups is overestimated. For example a large number of university students have average intellect and not higher as might be assumed and after all, low average is just that. It is not abnormal or deficient.”

While recognising that fatigue was problem for Jubair he felt unable to express any firm view on whether Jubair could work full time in another role.

Dr Walton’s second report involved a review of Dr Williams’s report in the course of which he expressed the view that Jubair had already been provided rehabilitation “and has chosen not to take advantage of it.” But he also said that:

“Whilst he has clearly exaggerated his level of deficit to me, on reflection, the clinical history is such that it is probable he has significant neuropsychological problems and he probably could benefit further from input provided he were able or willing to engage.”

In January 2010 Dr Walton was instructed to review various records, including Jubair’s application for disability allowance, and witness statements. In relation to the application for disability allowance he expressed the view that some of the complaints (such as feeling shameful following soiling himself, his pain, his memory problems, his limited physical capacities and the general impact on his life) were consistent with the nature of the injuries he had suffered. Dr Walton considered Jubair’s reports of being unable to stand or walk for more than a few minutes to be inconsistent with what he had been told (for example, that “the claimant goes to college three days per week, goes out to play snooker with his friends, goes to the cinema and goes to the local shops”). In the opinion section of the report Dr Walton expressed scepticism about the results recorded in external neuropsychological assessments because “it is very unusual to see a marked diminution in general cognition or IQ even in those with severe brain injury and it is highly unusual to see all indices in the “extremely low” range – again, even in those with severe traumatic brain injury. Thus the claimant’s apparent deficits appear too impoverished to me. I am also concerned that the claimant has been able to return to his studies and cope (albeit not very well) whist being virtually amnesic according to the memory scores that have been recorded.”

Dr Walton’s next report was in July 2010, shortly before Jubair went to Banstead. After recording Jubair’s outline of his present complaints, he recorded as Jubair’s account of residual abilities that “He retains a good circle of friends and goes out to socialise for example to the cinema, out for lunch, out for dinner or he makes visits to his friend’s houses.” In relation to transport, he recorded “he is able to travel and use public transport independently and he told me that although he had attended with his case manager he was going to find his own way home from Central London following her advice and directions. He told me this would not represent a significant challenge.” I return to this record later but note at this stage that the contemporaneous record of Debra Hall, Jubair’s then case manager, directly contradicts what Jubair said would happen since it records that she travelled back to Jubair’s home with him (Footnote: ⁶⁹). Dr Walton described Jubair’s presentation as “bizarre, being extremely slow in his responses and wearing a facial expression of wonderment”. He had climbed the stairs to the first floor room extremely slowly, yawned incessantly from the outset and on more than one occasion appeared to fall asleep, though Dr Walton was not convinced that he was really asleep. His body language was such that Dr Walton’s impression was that he was making no effort whatsoever to complete the tests with any degree of co-operation. On symptom validity testing Jubair appeared to Dr Walton not to be exerting any effort; he failed the tests in a profound manner. The paucity of his performances, his general demeanour and his questioning about his level of success led Dr Walton to the view that Jubair was probably deliberately trying to mislead him into thinking he was more impaired than was actually the case. In stating his opinion, Dr Walton said in relation to employment:

“The claimant had a poor academic history but would probably have been capable of working in some low level occupation. It is questionable whether he would have been capable of realising his claimed ambition to become a police officer.”

In relation to social and recreational function, Dr Walton said:

“From the claimant’s own account, there does not appear to be a significant disadvantage in relation to social function. There is though some disadvantage from his scarring and problems with incontinence. …”

In relation to the need for care or support Dr Walton expressed the view that:

“I am not aware that the claimant has support needs in relation to activities of daily living and his ability to go out socialising and his ability to travel independently across London would suggest there is no such need.”

Four months later Dr Walton provided a review report in which he reviewed some of Jubair’s educational records and some of the medical reports which had by now been provided. In referring to Dr Bradley’s report of 10 June 2010 Dr Walton interposed the following comment:

“The claimant’s father also reported the claimant could not be trusted to travel independently, yet he was perfectly capable of travelling across London on his own when he saw me recently. The claimant’s father commented that the claimant could not remember how much sugar he had put in his tea from one moment to the next but none the less reported that the claimant could run his own business with family support.”

Referring to Dr Gill’s report of 29 September 2010, where Dr Gill had regarded one of Jubair’s comments as being made with “some charm” Dr Walton commented “I would regard this comment as more cynical than charming.” In relation to the same report from Dr Gill, Dr Walton referred back to Mr Ali’s request at the time of his first report that he should “look sympathetically upon his son’s case” which he now described as Mr Ali’s “[attempt] to persuade me to produce a favourable report”. In expressing his summary of his opinion Dr Walton said “since the accident the claimant has continued to socialise and had attended college and passed courses up until a level 3 University entry level course which he was thought incapable of passing. This may have been due to brain injury related problems but was probably also related to his ongoing poor attendance and level of application.” He later said that Jubair “almost certainly does have cognitive and behavioural difficulties consequent upon the accident but I do not think that he had sufficient credibility as a witness to rely on his accounts and his real life functioning would suggest that his deficits are not so severe as to prevent a relatively normal level of social function and some employment.” He had been asked specific questions about Jubair’s prospective educational and employment abilities had the accident not happened to which he replied:

“I think [the school reports] show that the claimant was functioning at a very low level though it is difficult to know whether this was because of an inherent lack of ability or a lack of application. In any event it is clear from the school records that he was not destined for high education of any worth. …

It is difficult to say [whether it is probable that the claimant would have gone on to tertiary education] given that it seems almost anyone can gain entry to tertiary education these days and a high level of academic ability does not appear to be a pre-requisite. However, I think it highly improbable that the claimant possessed sufficient self discipline and rigor to achieve anything worth while at a tertiary education level

...

I am afraid I have no knowledge of what is required to gain entry into the police force. However I would be surprised if the claimant had sufficient ability and moreover I think he lacked any signs of the discipline and motivation to see through any training that would pose a challenge or requirement for punctuality and consistency. I think that even were he admitted to the police force it would be improbable that he would complete his training. ”

Dr Walton provided a further report shortly before the liability trial, for the purposes of which he assessed him in October 2011. In a detailed summary of the chronology as he understood it, Dr Walton concentrated upon the discharge summary from Newham CDS in November 2008 which had found his memory to be significantly compromised with the exception of working memory. Dr Walton pointed out that this was inconsistent with his current working memory performances whereby he was apparently able to repeat only two digits backwards. Dr Walton continued:

“The claimant was independent and able to use public transport to attend college and meet friends. It was noted that it had been difficult at times to engage the claimant and his family in the rehabilitative process. The claimant had frequently failed to attend appointments. NHW Comments: This contradicts the claimant’s current claim that he cannot use public transport or go out alone. It is also clear that the claimant and his family have now been non-compliant with rehabilitation efforts for almost three years. The claimant’s failure to engage would seem to mirror his pre-accident behaviours at school.”

Dr Walton identified a Banstead note dated 23 March 2011 (Footnote: ⁷⁰) which referred to Jubair having been found playing football which Dr Walton regarded as “incompatible with the slow and tentative gait he showed on the last two occasions that I saw him.” Once again Jubair presented to Dr Walton in a way which convinced Dr Walton that he was dissembling, and he failed the SVTs which Dr Walton administered. In giving his opinion on this occasion Dr Walton wrote:

“I think absent the accident he would have been able to work but I think it probable he would not have persisted when faced with difficulty and would have had problems dealing with authority figures and discipline such that on the balance of probability, he would have had a somewhat chequered work history.

I think it improbable that he would have been of a calibre sufficient to work as a police officer.”

He pointed to Jubair’s presentation and failure of the multiple symptom validity measures, pointing out that it was for the court to determine what motivated his conduct. Under the heading “need for care assistance or support” Dr Walton repeated that “the claimant is capable of using public transport and general facilities such as banks, shops, and recreational facilities when he chooses to. He has shown himself capable of attending college over an extended period. What I think is most striking is that the claimant and his family have repeatedly failed to engage with rehabilitation efforts and he has found one reason after another for not continuing with the process or not taking up offers that are made.” His conclusion was that he thought it probable that Jubair could live largely independently with a minimal level of support.

Dr Walton’s May 2012 report was based upon a further attendance in the course of which Jubair has said that he did not remember Dr Walton. Although initially he presented as a little more engaged he “rapidly became disinterested and apparently (though very unconvincingly) extremely fatigued. He repeatedly yawned very loudly and in a rather histrionic manner. He sprawled across my desk with his head on the desk having only moments earlier being fully alert and upbeat about learning to play the guitar.” Dr Walton gave chapter and verse about the failure of Jubair when carrying out further testing and expressed the view that “the best explanation for his performance was that he was not intent on answering the questions correctly but he did not try very hard to get them wrong.” In giving his opinion Dr Walton referred to the fact that working memory was said to be normal when Jubair had been discharged by the Newham CDS in November 2008 and again in 2009 although he was apparently profoundly impaired in this domain by 2011: this is highly unusual and atypical of those with traumatic brain injury. Equally, Jubair’s inability to repeat even two digits in reverse order when he saw him in 2011 “makes no sense in the context of earlier normal performance, nor indeed in the context of even severe traumatic brain injury.”

Dr Walton’s general view of Jubair can be summarised by the following passages:

“It is inconceivable that the claimant could have returned to college post accident, passed courses over a two year period and be learning to play the guitar whilst being incapable of determining whether I was holding up two or three fingers. There is no evidence that he has any perceptual difficulty to account for this. Nor are his previous abilities compatible with his claiming not to know what common objects are or that an egg is not a man-made item.

I also find it difficult to reconcile the claimant’s attendance at college and his having withdrawn money from his bank accounts at various locations around London at different times of the day and night, his report to me that he intended to find his way home from my rooms in Devonshire Place, and reports that he would wander off alone whilst on holiday in Bangladesh (and presumably return), with the suggestion that he cannot find his way to Headway despite having attended there regularly.

By this time it is clear that Dr Walton considered that Jubair was a malingerer, and he was not prepared to volunteer any view upon the extent of any likely deficits that his might be suffering. In addition he commented adversely on Dr Bradley’s psychiatric report where Dr Bradley had referred to Jubair hearing voices stating:

“to my knowledge, the hearing of voices is atypical of those with depression unless there is evidence of psychosis and Dr Bradley had provided no evidence of this. Dr Bradley provides no explanation of how he ruled out malingering in relation to these bizarre and atypical reports, which seem to have been dealt with inconclusively given their nature. ”

In July 2012 Dr Walton commented on further medical reports and support worker records. His opinion was that Jubair’s reported difficulties “appear to wax and wane considerably and whilst he is said to be in need of prompting for the most basic of tasks, he is at the same time said to be capable of planning and initiating activities of some complexity (e.g. using the internet, his laptop and iphone; downloading guitar software from the internet and learning to play guitar) he has also shown himself capable of sitting and passing the UK Citizenship test that is clearly of some complexity and requires a high level of accuracy.”

Dr Walton’s final written offering was a letter referring to Jubair’s bank statements and Facebook account which he regarded as providing support for his views.

In giving his evidence Dr Walton was subjected to a sustained cross examination which was designed to show that he was unduly wedded to the outcome of the psychometric Symptom Validity Tests. In addition, a number of aspects of his evidence were highlighted where his view appeared to have hardened against Jubair without good reason or where he had made observations which were otherwise not justified. As a result he was forced to withdraw a number of disparaging comments in his evidence (Footnote: ⁷¹). Because of his emphasis upon the need for objective scientific evidence, Dr Walton’s final position in evidence was that there was no criterion on the basis of which he could arrive at reliable conclusions. Specifically in relation to capacity he could not give an opinion one way or another. Where he remained resolute was that, in the light of repeated and profound failures of the SVTs, clinical observations and other psychometric testing not backed by SVTs could not be relied upon. Although he repeated that it was for the court to determine what Jubair’s motivation may have been, it was clear that he held the view that Jubair was malingering with a view to increasing his recovery in this action.

Dr Williams and Professor Collin provided a joint statement dated 14 October 2012 which was restricted to the sequelae of the brain injury. They agreed that Jubair had been left with some mild physical, cognitive and communication problems and that his period of biological recovery was completed several years before. They agreed that it is not easy to assess Jubair or to reach reliable conclusions on his level of need because of inconsistencies in his presentation, but agreed that he will have sustained some impairments in his abilities as a result of his injuries. Their joint view was that Jubair appeared to have made good progress at Banstead. “He was fully independent for personal care. He could get out and about independently, he could shop independently, and manage his finances for shopping. He carried out some light domestic activities. He achieved several educational certificates and level I sports leader qualification”.

Under the heading “Physical and Functional status” they agreed that Jubair is now physically in good condition and “independently mobile”. He was involved in a programme of activities during the week, when he is always accompanied by a support worker, though Professor Collin understood that this was because one had been provided rather than because one was necessarily needed; he had become involved in various activities and was learning to play the guitar; he did not and for cultural and family reasons was unlikely ever to take part in domestic activities at home; and he appeared to be able to deal with internet banking, checked his balances before shopping, and managed cash transactions safely and he engaged in activities outside the home without requiring support worker input: this was explained by Dr Williams as meaning meeting his friends and going to a cinema.

There was a divergence of view of Jubair’s cognitive status although both experts agreed that it was difficult to judge because he had been unable to provide reliable and consistent evidence. Dr Williams considered he has continuing problems with memory, problem solving, initiation, planning and motivation. Professor Collin would have expected there to be residual difficulties but believed his recovery has been sufficient to allow him to lead an independent lifestyle. The experts took note of the passing of the UK citizenship test. Professor Collin expressed a view that it could not be passed by any individual who has not studied and memorised the manual or who has any significant degree of cognitive impairment. She also noted that on the day of his test Jubair had arranged his own transport, had planned independently to visit the Apple Store and went shopping with his support worker. (Footnote: ⁷²) On support requirements Dr Williams maintained her recommendation for the provision of about 10 hours of support a week, used flexibly. Professor Collin thought the current regime of 5 hours per day was excessive but found it difficult to determine his actual need for support worker input. The experts were agreed that in the longer term light, distant or arms length support may be all that is necessary. They were broadly agreed on the need for therapeutic input as follows:

The experts reached a cautious agreement on vocational rehabilitation considering that Jubair would be capable of “an appropriate, probably unskilled, occupation in which he is interested, at least on a part time basis”.

Dr Williams provided six main reports and other letters. Her first report was based upon a meeting on 2 May 2008 and her review of medical records. She was told that Jubair had metalwork in his spine and had continuing back pain which resulted in poor posture. He moved slowly and carefully and, while fully mobile, could not hurry or run. She was told that he seldom went out unaccompanied. Dr Williams made recommendations for expert input including that he should go to a residential placement such as Banstead. Her view at that time was that, with appropriate support and input he may be capable of holding down a job; but she considered that the question of capacity for work should be reconsidered later.

When asked in October 2009, Dr Williams gave as her opinion that Jubair did not have capacity to manage any interim payment personally and that his best interests were to be served by the appointment of a supervising person nominated by the court. That remained her view when she was asked again in March 2010, having been provided with Dr Powell’s report.

Dr Williams provided her next main report in April 2010 on the basis of a consultation on 30 March 2010. She recommended attendance at Banstead. On the issue of capacity she said “It is my opinion that [Jubair] demonstrates a combination of youth, naivety, inexperience and acquired brain damage which renders him incapable of managing his own affairs at present, even with support”. Her next report, dated 31 July 2010, was directed to the need for Jubair to take up a place at Banstead, which Dr Williams strongly recommended. As a result of her meeting Jubair at home for the purposes of the report, she formed the view that he was clearly bored and probably clinically depressed. After Banstead and shortly before the liability trial, Dr Williams produced a further report dated 27 October 20011 based on a consultation held on 3 October 2011 and a review of extensive records. On this occasion Jubair had been out shopping for biscuits when she arrived and when he returned, he appeared much more alert and engaged than before. He had lost weight and demonstrated good painless spinal movement, with pain only at the extremes of extension and right lateral flexion; but he complained of back pain after sitting for any length of time. His speech was still unclear. It was clear to Dr Williams that his short term memory was severely affected and this was born out by formal testing. On reviewing the regime that was being put in place, Dr Williams expressed the opinion that Jubair would require a support worker for any activities which involved new or complex environments, planning or decision making, when he would continue to be vulnerable and potentially unsafe. On this occasion Jubair was expressing a wish to live on his own which, in Dr Williams view, would have major repercussions on the amount of support for which provision would have to be made. At present the family provided all the necessary domestic support; but if he were to move away her hope would be that he would in time be able to manage without overnight (sleeping care) though she would recommend that provision should be made for a transitional period of six to twelve months of overnight sleeping care in the first instance. She expressed her full support for the recommendations made by Banstead upon Jubair’s discharge. Her prognosis was that Jubair’s level of cognitive damage meant that he would unfortunately never be able to function entirely safely and reliably outside his immediate home environment and that he would require trained support at all times particularly in new or unfamiliar situations. Her opinion was that Jubair experienced continuing problems including severe visual and spacial memory impairment, impaired executive skills, problems with word finding, difficulty in planning organising and multi-tasking, and frustration combined with mild disinhibition and mild impulsivity. She considered that his current problems were likely to be permanent. Re-visiting the question of his capacity for work, she expressed the view that he would not be capable of holding down remunerative employment. On the issue of mental capacity her clearly expressed view was that he did not have and would not regain capacity.

On 19 June 2012 Dr Williams produced a further report based upon a consultation on 11 June 2012 and further documentary information. On the basis of the reports from the case manager, support workers and therapists she formed the view that Jubair required regular, trained support on a virtually full time basis to enable him to lead a fulfilling and appropriately active life. Her prognosis was that he would not be able to achieve functional independence because of the cognitive damage he had suffered. He would require the continued input of trained support workers and would be unlikely to hold down a full time remunerative job, although he may be able to work in a supported environment possibly on a part time basis.

Dr Williams’ final report was dated 28 November 2012 and was largely based upon a review of further documents including his Facebook account and bank withdrawals. Referring to his Facebook activity, in a passage with which Professor Collin agreed in evidence, Dr Williams wrote:

“His use of his account is intermittent and I get the impression that he does not initiate very many interchanges nor engage in exchanges of any depth. He appears mainly to be in contact with individuals from Banstead and Headway whom he has actually met in person, as well as some school friends. It is not clear whether Mr Ali in fact socialises in person with many of these people. His entries tend to be somewhat random comments, very similar to some of his spoken conversations with me over the past few years. He does not always provide the context for his remarks, a style of approach which is seen in some brain damaged individuals. … Overall one gets the impression that [Jubair] is attempting, not very successfully, to keep in touch with a limited number of people whom he has come across. I would certainly not describe him as having numerous friends nor of using this account other than at a rather basic level”.

Dr Williams considered two regimes for future support. The first was if he continued to live in the parental home. Because of the home environment and the nature of the support which he received from the family, if he were to continue to live in the parental home he would need the support of an “enabler/buddy” to leave the house and take part in outside activities. She supported the provision of such support for 5 half days a week (25 hours over 5 days) diminishing in future. Alternatively, if he lived in supported independence he would need support which, again, would reduce over time as he learnt to take over aspects of every day living both within and outside his home. On the issue of capacity her views remained unchanged.

Dr Williams gave evidence which I found conspicuously thoughtful and helpful. It addressed five main areas:

Professor Collin’s main medical report was dated 15 July 2012 and was based upon and examination on 28 June 2012, when Jubair was accompanied by Ms Jeffreys and Mr Brown. Professor Collin recorded that she was given the following information. When at home, he does little for himself. He rarely goes out with his brothers though he used to. He sometimes sees his friends from before his head injury and he said that they would go to the cinema or to play pool or go to the gym. Because of his back ache he sometimes finds it difficult to sit in the cinema. He said that his friends would come and collect him and he would not have to find his own way there. He had however managed to attend his local College (Newham) independently before going to Banstead.

Professor Collin formed the view that Jubair deliberately underperformed in his presentation to her, both physically and cognitively. She summarised her view as follows:

“On examination he presents as listless and poorly motivated. During the course of the interview and examination I became convinced that he was underperforming. On the physical aspects of examination, this was evidenced by him not trying to do much of the physical examination, by his give-way weakness and by his commentary “oh it aches, I am stiff” and by his general physical demeanour. There is an extremely mild right sided weakness, but it has little impact on his physical functioning. He was also unconvincing in the severity of his cognitive losses. Struggling to remember the date of his birthday and his age is really incompatible with the generally good ability he had in recalling his history and his life both before and after the accident. At times he asked questions which suggested to me that he was trying to work out what impact and particular answer might have on his case, e.g. he asked on one occasion “now how should I answer that question?” when I replied “truthfully” he looked embarrassed. He asked a lot of questions to be repeated and he gave the impression that he was trying to plan his answers but taking extra time to do so. I concluded that although he has some cognitive and memory impairments and some neurobehavioral problems they are not severe, and following the severity of the brain injury I would describe as mild in a relative sense. There appears to be a lack of initiation and a loss of motivation, but he did give the impression that he was exaggerating his difficulties. He may also be depressed.”

In her summary of findings Professor Collin referred to Jubair’s educational achievements at Banstead which she regarded as “presumably completely incompatible with severely impaired results found on some of the psychological assessments, the results of which were accepted without question.” It was her view that his recovery from the brain injury had stabilised many years before and that, for the future his primary need is for a structured routine containing some meaningful activities. She regarded his physical abilities as good and suggested that a series of prompts could be devised to encourage better regulation of his lifestyle. She regarded the true level of his cognitive abilities to be very uncertain. She accepted that he may well have persisting difficulties with planning or with complex reasoning but regarded his passing of the citizenship test as providing further evidence of his abilities when he engages fully with an exercise. Her opinion was that he had recovered from his brain injury sufficiently to allow him an independent lifestyle. Her view was that the support worker input should be “very light touch” estimating that ten hours per week should be sufficient within a regime of structured activities that he can attend without ongoing supervision. She expressed the view that he should be capable of doing some form of part time unskilled and light work and saw no role for ongoing occupational therapy for domestic activities because of the family structure and cultural setting in which he lived. She recommended four to six contingency physiotherapy sessions per annum and intermittent review by a neuropsychologist. On capacity she said that she was unable to come to a decision on his abilities to handle large sums of money.

On 27 November 2012 Professor Colin provided a letter report having read additional information including support worker diaries, bank statements, telephone records, Facebook documents and Mr Ali’s last witness statement. On the citizenship test her view was that if, as Mr Ali suggests in his statement, Jubair planned his third approach to taking the citizenship exam independently and without assistance from any of the family, it suggests a high level of planning ability, initiative, stealth and skill so that his method of cheating evaded observation by the invigilator. On the basis that Jubair had made all the arrangements concerning transport and attending the test centre independently, that reflected a high level of motivation. As a non Facebook user her observations were suitably cautious and, in my judgment, do not take matters further. Having reviewed his bank statements and the support worker records Professor Collin was confirmed in the view that Jubair performs independently and in a normal way in a wide number of activities including managing his mobile phone account responsibly, managing his online banking, withdrawal of cash, and keeping control of his spending. Review of the records confirmed her in the view that in the long term his requirements were for light distance or arms length support. She offered the possibility that he eventually might not have any long term needs.

When she gave her oral evidence Professor Collin was firm in her view that Jubair had been elaborating his difficulties when she saw him. Her assessment of the time when he had been to Newham College was that he had not asked for special help so people had looked out for him. She regarded the evidence as suggesting that he could catch the bus on his own and was a man who was going out and doing “normal things”. Her view was that he now goes out with friends after the social worker goes and that therefore she had concluded that he was now living an independent lifestyle. Even so, it had surprised her that Jubair had passed the citizenship test, first because the support worker had not known what was happening in advance and Jubair had organised the taxi, and, second, because Professor Collin had not realised how difficult the test was until she had tried in it online when she had found it very difficult. She was therefore surprised that Jubair had not needed a support worker to assist him in any respect. She regarded an allowance of ten hours support per week as a contingency that would be sufficient to provide for unexpected developments. She had in her reports suggested that there was a possibility of remunerative employment in the future but she accepted that Jubair would be at a monstrous disadvantage on the open labour market.

In this section I consider primarily those aspects of the care experts’ evidence which go to the primary factual questions in the case. I leave their assessment of relevant and recoverable care and other items to the quantification of the claim later on because, as each expert acknowledged, their recommendations were based upon their interpretation of the primary evidence.

The experts provided two joint reports. The first was prepared after a meeting on 22 November 2011, the second after a meeting on 25 October 2012. They were agreed that it was very difficult to assess accurately care requirements for Jubair because of inconsistencies in his presentations and the information provided to the experts. In particular they were agreed that if Jubair took the citizenship test without any assistance or preparation from the support worker or others, then his cognitive ability was far more than they had been led to believe. Their joint view was that if Jubair had been shown to have been exaggerating his symptoms then they felt it was “impossible to recommend any future care or assistance because they really cannot assess his true needs in light of recent information…”. Their interpretation of the primary evidence included an assumption that Jubair would obtain gainful part-time employment at some stage. They were unable to provide any substantial assistance as to whether or not Jubair would live away from his parents’ home in the foreseeable future, even though Ms Philips considered it unlikely.

Ms Phillips provided four main reports, dated 20 October 2009, 6 November 2010, 15 November 2011, 22 June 2012. In her first report she recorded being told by Mr Ali that, but for the accident, Jubair would have followed his chosen career path and that at some point he would have met a partner who he would marry and set up home with. If that happened Jubair’s partner would take on the domestic chores and cares of any future children. Jubair had been planning to have his parents live with him as they aged and Jubair’s wife would also have assisted with their care. Ms Phillips recorded that while Jubair may have more difficulty in finding a suitable life partner due to the consequences of his injury, he still wished to care for his parents in the long term as they aged. In her second report she recorded that Jubair and his family are “very clear that he and his parents will remain living together until they pass away as tradition dictates. When his parents are no longer able to assist him with day to day cognitive support and household activities, Mr Ali will require employed assistance if he remains unmarried”. In November 2011 Mr Ali told Mr Phillips that the family now wished for Jubair to have the option to be able to live independently at the conclusion of the claim and his further rehabilitation, although it seemed likely (to Ms Phillips) that he would remain living with the family. Her view was that Jubair was clearly very close to his brothers and she envisaged that his family would continue to provide additional support to him for the rest of his life, even after his parents had passed away. In that report she noted that during her assessment the television was showing a football match which Jubair appeared interested in throughout and which at times took all of his concentration. Her view was that he appeared less articulate and confident in his speech and manner than when she had met him while at Banstead. On the occasion of her final report she was able to speak to Jubair’s support worker who told her that Jubair was able to focus his attention on tasks that interested him (for example learning the guitar) and could recall information from session to session but that his working memory and ability to plan remained poor. She was told that he was able to walk to the local shops and purchase items but his case manager and support worker were clear that he could not consistently find his way if travelling further afield, even to weekly appointments. She was told that he did not use public transport alone to attend any of his appointments.

Ms Makda’s main reports were dated 19 April 2010, 8 September 2010, 22 November 2010, 12 January 2011, 25 May 2011 and 6 September 2012, with other contributions by letter. Her technique in her main reports was to update information while repeating what had been included in earlier reports. In her first report she recorded Jubair as telling her that since about February 2010 he had started “to go out by himself and reported that recently he had gone out to meet some friends”. He said that the previous Saturday he had gone to the library “to meet his mates”. He said he “travelled by bus approximately 3-4 stops. He spent time with them for a while before returning home on the bus”. He also said that on the way home his mates had dropped him at the bus stop and he had taken the bus home by himself; but he had got off at Plaistow station and then walked a long way to his home. He did not know why he had got off so early. In relation to budgeting and finance Jubair told her that he had no problems buying or selecting things. Mr Ali said that Jubair did not waste money and that he did not have any worries about Jubair managing his money. In relation to social activities and recreation Jubair told Ms Makda that since the accident his friends would visit but that they were usually busy. She was told that when Jubair had been at Newham, he had gone to college and returned home by bus. She was told that his friends travelled on the same bus route, or sometimes his father took him to college. On questioning Jubair said that he was always likely to stay with his parents and that he was his “mother’s boy”: he had no plans to move out of the family home.

For the purposes of her report dated 25 May 2011 Ms Makda interviewed Jubair at Banstead. She was told by Dr. O’Brien that Jubair was “quite anxious about how he comes across to others; he wants to be appropriate and be seen as a good person.” She was told that Jubair was independently mobile within the unit but that any new routes were rehearsed with repetition. He was not allowed to go out independently, was always accompanied and required supervision with crossing roads because he was impulsive. For her November 2011 report Ms Makda interviewed Jubair at home. She was told that Jubair’s friends continued to provide him with support. He would go out around 7pm to 9pm with them most evenings; his friends collected him or his father would take him to meet them. Mr Ali told Ms Makda that he might go to meet his friends in Upton Lane where Mr Ali would drop him off. Jubair told her that he would walk locally to the Mosque and local shop although he had been on the train and the bus with his father. He said he had not travelled alone by bus. His father said that he was worried about the amount of traffic in the local area. Ms Makda interpreted the information she received as meaning that Jubair had not engaged with his rehabilitation at Banstead. Her view was that he had developed “illness behaviour” and dependency and that he ought to be able to do more than he was.

When preparing her final report in June 2012 Ms Makda was told that Jubair continued to have good friends and met them two or three times a week. She was told that they would usually “hang out” together for a couple of hours or more and then go shopping or eat out. At the same time, Mr Ali informed her that he would not let Jubair walk in the neighbourhood because there were lots of cars and it was a busy area.

Where necessary, I refer to the oral evidence of the care experts elsewhere.

The Defendant’s case is that the claim is essentially fraudulent, by which I mean that the Claimant is advancing a claim which is known to be unjustified. Jubair himself has not given evidence and so cannot be assessed as a witness by the Court. However, numerous witnesses of fact and expert witnesses have been called, nearly all of whom have known Jubair for a long time, and their evidence is backed up by the extensive documentary records, some of which have been summarised above. If the claim is essentially fraudulent because Jubair is not nearly as disabled as his presentation on a day to day basis would suggest, then a number of things follow. First, his immediate family must know the true level at which Jubair has been functioning, since it is inconceivable that Jubair alone could have decided on and sustained so elaborate a course of deception without their knowledge. Second, those professionals who have had responsibility for his care over the (almost) seven years between the accident and trial must, without exception, have been taken in by Jubair’s deception. Third, the medico-legal experts who have seen him on a number of occasions over the years since they were instructed and who have expressed the opinion that Jubair has been and is significantly affected by the consequences of the accident must also have been deceived by Jubair and his family.

I have mentioned the evidence of Mr Ali and his two sons, Sadek and Salek already and, in doing so, have rejected the attack on Mr Ali’s evidence based upon the DLA applications of 2008 and 2009: see [100-103] above. Standing back and reviewing his evidence as a whole, I consider that the assessment of Mr Ali by various professionals, which appears in many places in the documents, is generally correct. It is consistent with the impression given by his evidence and conduct in court: Mr Ali is passionately devoted to his son who he considers, with justification, to be a victim and deserving of sympathy. He is also over-protective because of his genuine belief that his son is severely disabled. He is not a sophisticated man and he is capable of exaggeration when speaking of his son’s needs. These characteristics explain his request to Dr Walton to look sympathetically on his son’s case (Footnote: ⁷³), his failure to engage fully with the attempts of those who have tried to motivate and mobilise Jubair while he has been living at home, his (unrealistic (Footnote: ⁷⁴)) idea that the family might start a restaurant to provide therapeutic “employment” for Jubair, and his exaggeration in giving some (but not all) of the answers in the DLA application form. His evidence about Jubair’s taking of the citizenship test was not entirely coherent or internally consistent; but I formed the view at the time, which has been reinforced on reviewing the evidence for the purpose of preparing this judgment, that this was because of a genuine lack of comprehension on his part about how Jubair could possibly have passed the test, based in large measure on his having failed it twice already and the family’s view that he was simply wasting his time and money. Although he was expertly cross-examined at length, neither that process nor the Defendant’s submissions have come close to persuading me that Mr Ali has been engaged in the knowing pursuit of an essentially fraudulent claim. At the same time, while I accept that he is overprotective towards his son, I consider it unlikely in the extreme that Jubair could have deceived his father by maintaining a false presentation of his disabilities over the years. The same goes for Sadek, who I assessed as being a witness who was attempting to assist the Court with evidence of truth. Salek’s evidence I treat with caution, for reasons already given; but some of it was of value and he provided no evidence of an overarching conspiracy by the family to present a false claim to the Court. The evidence of the family members does not lend support to the Defendant’s case that the claim is essentially fraudulent.

The other witnesses of fact called by the Claimant provided a powerful body of evidence in support of the claim that Jubair has been and remains significantly disabled by the consequences of the accident. Those whose evidence addressed the pre-accident period gave evidence which was measured and which I accept. Those who have known Jubair since the accident were unanimous in their belief that Jubair was not a malingerer – even when taxed with the evidence of his passing the citizenship test. I have reviewed their evidence about the possibility of malingering at [128-134]. They were, without exception, dedicated and thoughtful witnesses whose evidence demands respect and carries considerable weight. It is regrettable that the evidence from his period at Newham College was necessarily provided by written statements and documentary evidence, but the general thrust of the evidence was consistent: Jubair struggled while at college and presented as a complex individual who was doing his best under the influence of multiple and complex disadvantages. That evidence is consistent with and supported by the evidence from Banstead, both live and documentary. Without exception the witnesses who knew Jubair at Banstead were impressive under challenge and unshaken in their evidence that, despite engaging well with the rehabilitation process, Jubair was subject to real and complex disabilities.

All of the experts were highly qualified and experienced in their fields. There was no substantial difference between the orthopaedic experts, Mr Handley and Mr Jackowski, and the remaining disagreements of emphasis were minor in the context of their broad agreement. Similarly, there was no substantial disagreement between the psychiatrists, Dr Bradley and Dr Gill, not least because they agreed that this is not primarily a case to be resolved by reference to psychiatric opinion. That said, their contributions were measured and valuable, particularly in relation to capacity (where their opinions differed) and in their accounts of Jubair’s presentation to them and the likely fluctuation of his mood, both past and future.

Assessment of the neurological experts is more complex. It is common ground that the severity of a traumatic head injury such as that suffered by Jubair does not correlate well with eventual outcome, and that there may be a wide variety of outcomes from injuries of apparently similar scope and severity. Probably because of that, the neurological experts were suitably cautious. Dr Foster’s initial joint statements with Dr Williams accepted that Jubair had received a severe brain injury as a consequence of which he had been left with physical, communicative and cognitive problems despite their recognition of some exaggeration and illness behaviour (Footnote: ⁷⁵). By the time that Dr Wade and Dr Foster prepared their joint statement shortly before trial, the complexities of the case were yet more apparent and the overall picture correspondingly less clear: but they were agreed in looking to what he had achieved at Banstead as a marker of his capabilities (Footnote: ⁷⁶). Dr Foster entirely properly, highlighted what he considered to be inconsistencies in Jubair’s presentation to him and to others. I consider that he over-interpreted the evidence about Jubair’s level of independence in the community and maintenance of a normal social life in his fifth, sixth and seventh reports (Footnote: ⁷⁷), which influenced his final views as expressed at the time of the trial. He was, however, suitably guarded in his oral evidence. This was, at least in part, because on his reading of the evidence Jubair had been more independent before going to Banstead than after it. Again, I consider this to be over-interpretation of the evidence, though there can be no doubt that the effect of going to Bangladesh and the subsequent introduction of the post-Banstead regime was that he did not maintain and develop upon the advances made while at Banstead to the extent that might have been hoped. That said, Dr Foster was not alone in finding the case puzzling, and I do not mean or imply that he was guilty of any loss of independence in the giving of his expert evidence.

Dr Williams also produced a joint statement with Professor Collin, in their role as rehabilitation experts. I have already said that I found Dr Williams’ evidence to be conspicuously thoughtful and helpful. Professor Collin was, understandably, influenced by her first impressions of Jubair which she considered not to be genuine (Footnote: ⁷⁸). In her main report, she considered that the true level of his cognitive abilities was “very uncertain”. As with Dr Foster, I consider that she has over-interpreted the extent of his previous and current independence; but I do not consider that this significantly affected her overall view, which remained cautiously expressed (Footnote: ⁷⁹).

I am unable to take such a view of the evidence of Dr Walton. It must immediately be recognised that the evidence of the neuropsychologists is important in this case. First, Jubair’s profound and repeated failure of the symptom validity tests means that it is unsafe to rely upon the quantitative estimates of cognitive deficit recorded by those tests outside the medico-legal context where SVTs were not administered. I would accept that this lack of safety extends even to those tests administered very early on when, in my view, it is highly unlikely that Jubair would have formulated any idea of misrepresenting his abilities. Second, on the joint evidence of Dr Walton and Dr Powell, it is probable that on at least some occasions, Jubair has not merely failed to do his best, but has deliberately underperformed: this goes to the wider question whether Jubair is presenting a claim that should be regarded as essentially fraudulent. Third, I accept the evidence of Dr Walton (with the agreement of Dr Powell on this point) that he cannot be in the first percentile in respect of memory (as has been suggested by some of the tests) since that would render him virtually totally amnesic and unable either to function as he has on a day to day level, or to pass the exams he passed at Newham or to pass the citizenship test. Fourth, I accept without reservation that it would be inappropriate for a neuropsychologist confronted by the test results that exist in this case to found his opinion solely on the basis of those results, since they cannot be shown to be reliable and are shown to be probably unreliable.

I have reviewed the evidence of Dr Walton in detail at [183-198] above. In the course of that review I have identified the numerous occasions in the course of his cross-examination where Dr Walton was obliged to withdraw or qualify important and unjustifiable observations in the written reports. In my judgment, having identified early on that there were apparent inconsistencies in Jubair’s presentation, Dr Walton lost the objectivity that is essential for a witness who is requested to provide independent expert evidence to the court. Particularly damaging, in my view, was his willingness to enter into areas where he lacked any valid expertise. This included his mistaken questioning (in his May 2012 report) of the validity of Dr Bradley’s views about Jubair’s hearing of voices, and his progressive hardening of view on the question whether Jubair would have been able to obtain and maintain a career in the police force. Equally damaging was that, although he asserted that a neuropsychologist could not express any reliable opinion in the light of Jubair’s response to the SVTs and appeared to dismiss the value of clinical observations as a basis for clinical judgment, he was prepared to express his opinions in terms which left no room for doubt that Jubair was a malingerer (in the broad and pejorative sense of being someone who was knowingly feigning the his disabilities in order to promote a fraudulent claim).

Viewed overall, I preferred the measured and cautious approach of Dr Powell to the more dogmatic and frequently unjustifiable approach of Dr Walton. When the neurological and rehabilitative evidence is taken into account, it shows that the consequences of very severe brain traumatic injuries are poorly understood and incapable of either prediction or accurate definition. Specifically, in a case such as the present, the determinants of behaviour and effective functional ability are multi-factorial, depending upon injuries to parts of the body other than the brain, physical abilities and disabilities, perception, mood, and the ability of rehabilitation to enable the patient to function independently on a day to day basis. The presence of reliable test results is useful but not determinative; their absence does not absolve clinicians or the court from reviewing all of the available evidence in order to form an opinion.

The care experts gave useful evidence based upon their assessment and interpretation of the evidence. I mean no disrespect to either by saying that my interpretation, as set out in this judgment, differs from either of theirs. With the evidence of Ms Makda, I formed the view that there was a tendency to hear, interpret and report things in a manner that tended to be adverse to the Claimant. I do not think that she did it consciously but, in my view, it led to regular over-interpretation of, for example, the extent to which Jubair had recovered true independence in everyday life or the extent to which he had a real social life or a meaningful circle of friends. However, I remind myself that over-interpretation in this way may be an occupational hazard for all experts; and in preparing this judgment I have attempted to scrutinise the evidence of all the expert witnesses for similar signs before reaching my own conclusions on the facts.

The starting point for any discussion of the effect of the accident upon Jubair is that he was someone of low average IQ before the accident. Post-accident tests have consistently predicted a pre-morbid IQ in the range of 84-88, though with a very wide interval of confidence. These results are consistent with what is known of Jubair before the accident. His academic achievements before the accident were very modest, which was probably the result of two related factors: he went to a failing school and was not motivated for most of his time to GCSEs. The Defendant points to his failure to achieve the GCSE results that he required for his course of choice after leaving Rokeby. There are two strands of evidence that are relevant to this. First, there is clear evidence of an improvement in attitude and attendance in his last year at Rokeby, reflecting the improvements in the school itself: see [13] above. Subsequently, the evidence of those who knew and taught him before his accident was that he had the ability to be a policeman and had begun to show social skills and responsibility: see [14-15] above. I accept the evidence that, by the time of the accident, he had developed to be a polite and courteous student who took his Muslim faith seriously and had shown initiative in volunteering to give a presentation on being a Muslim. I also accept the evidence that he would have passed his initial course and would have been capable of passing the necessary subsequent educational requirements that would have enabled him to become a police officer. There is, in my judgment, no reasonable basis for a conclusion that his earlier behavioural difficulties or lack of academic achievement would have prevented him from being a police officer and I reject Dr Walton’s evidence to that effect.

The second strand is that, while Salek has not developed any significant career, Sadek and Sayem have; and Sadek, like Jubair, did not distinguish himself at school or at GCSEs. Their father worked until ill-health prevented him. This family background is, in my judgment, likely to have supported Jubair if he wished to become a policeman.

Both before the accident (when it was realistic) and after (when it was not) Jubair consistently expressed a wish to be a policeman: see [13, 14, 15, 21, 24, 25, 27, 28, 43, 64] above. It appears that he had some family connection with the police. On what is known of Jubair before the accident, it is probable that he would have been a desirable recruit for the Metropolitan Police if he met the entrance requirements, because of his ethnicity and his cultural and religious background. Although it cannot be regarded as a certainty, I find it to be probable that, if the accident had not happened, he would have followed his settled intention to be a police officer and would have achieved that ambition. His progress thereafter may have been restricted by his relative lack of intellect, but there is no reason to suppose that he could not have pursued a reasonable and responsible career as a police officer. Had he left the force or pursued a different occupation, he would have had the ability and the motivation to obtain and hold down other employment. Once again, his low average IQ would have provided an effective ceiling on what he could have hoped to achieve, but reference to what his brothers Sadek and Sayem have earned provides a useful, though not determinative, comparator. Salek, the slow one of the family, is not a useful guide or comparator since I find it to be highly unlikely that Jubair would have followed the same path.

Jubair suffered severe physical injuries. I accept the evidence of Mr Handley and Mr Jankowski as summarised at [142-148] above. Because of the dispute about Jubair’s cognitive disabilities, it is easy to underestimate the impact of his physical injuries and the sequelae other those directly attributable to any cognitive deficit. They included the following:

The debilitating and restricting effect of his physical injuries has been severe. I reject any suggestion that he has played football even approximately as a fit young man would do. He was not able to run properly at any stage before the removal of the metalwork and his recovery from that operation. By dint of hard work in his engagement with the fitness programme devised for him at Banstead and since, he has lost weight and improved his general level of fitness, with corresponding benefit for his general outlook and mood (Footnote: ⁸²). However, even if he maintains his current levels of fitness, he will never be fit by the standards of an uninjured person.

Unravelling the cognitive effects of the accident is much more complicated. It is necessary to examine the consequences of the acknowledged unreliability of the various tests that have been carried out. First, however, it is necessary to examine the Defendant’s submission that, as well as not cooperating with the administering of tests, Jubair has not engaged constructively with the rehabilitation that has been put in place for his benefit.

Once the history is examined in detail it becomes apparent that there is a marked contrast between Jubair’s response when living with his family and his response when he has been removed from home. The periods when he has been at home may be sub-divided between those when no substantial rehabilitation was being attempted (for example, after being discharged by the CDS in August 2006 and on the occasions when he went to Bangladesh) and those when people were attempting to provide support while he was living at home, both before and after Banstead. In the periods where no external support was being provided, Jubair received no encouragement to implement strategies and he has tended to regress, as in the period after Banstead when he went to Bangladesh. In the periods when support was being provided before Banstead, there are repeated references to a failure to engage and a failure by the family to support the attempts to provide support to Jubair, such as, for example, in the CDS discharge summary in November 2008 (Footnote: ⁸³). These difficulties have continued to the present, as Ms Jeffreys’ evidence made plain.

However, when Jubair has been removed from the family environment, the story has been quite different. He tried hard at Homerton in 2006, as is apparent from their reports summarised at [23, 25] above. And when he went to Banstead, those responsible for his care were satisfied that he was, in general, engaging fully and constructively. So, for example, the February 2011 Report recorded in its general assessment that he had been motivated and had made good progress (Footnote: ⁸⁴); the July 2011 report referred to his having engaged well with most (though not all) aspects of his rehabilitation (Footnote: ⁸⁵); and Dr O’Brien’s evidence was that Jubair had engaged very well in the process of rehabilitation and had been very motivated and engaged throughout (Footnote: ⁸⁶). I reject Ms Makda’s interpretation (Footnote: ⁸⁷) that Jubair did not engage with his rehabilitation while at Banstead.

To my mind, the reason for this disparity is clear and is not primarily attributable to any “failing” on the part of Jubair. The contrast between the dedicated residential regime at Homerton or Banstead and the stifling effect of living at home is stark and explains the lack of success and Jubair’s apparent lack of cooperation with the somewhat piecemeal provision of support at home, at least in the period before he went to Banstead.

The period after Banstead and up to the time of trial requires separate consideration because a detailed, dedicated and expensive regime had been put in place and yet the results had been disappointing, as Ms Jeffreys effectively acknowledged in her third statement (Footnote: ⁸⁸). This led Dr Foster and Dr Wade to suggest that the regimen was not working (Footnote: ⁸⁹). In my judgment there were a number of factors militating against the success of the regime put in place after Banstead in the period to trial. First, Jubair went with his family to Bangladesh on leaving Banstead. Second, he had serious medical complications which disrupted progress, namely the development of epilepsy and Stevens Johnson Syndrome (which were caused by the accident) and gallstones (which, on the evidence, were not). Third, he was living at home. Furthermore, though the Defendant criticised various aspects of the regime, progress had improved in the months before trial, particularly in relation to route planning and finding.

Before leaving the question of Jubair’s engagement with rehabilitation and turning to consider and discuss the level of any cognitive deficit, I note in passing that the varied response to rehabilitation, dependant upon external circumstances, does not lend support to the Defendant’s case that the claim is essentially fraudulent. It does, however, raise the difficult question: what is the most appropriate regime for the future? That is a question to which I shall return.

The Defendant relies upon Jubair’s successful passing of exams when at Newham, the repeated failure of the SVTs and the passing of the citizenship test to support the submission that Jubair does not suffer from any significant cognitive defect. Given the lack of reliability of the formal test results, close scrutiny of his presentation over the period since the accident was and is justified. When that scrutiny is undertaken, it shows that Jubair has consistently presented with significant memory problems from a time when, in my judgement, he was in no fit state to contemplate feigning.

Jubair was assessed and observed over three months from April to June 2006 at Homerton: see [20-25] above. Homerton concluded that he suffered from problems relating to attention, delayed memory and initiation, which were compounded by a lack of insight into his cognitive problems. In May 2007 significant memory problems were reported which led to the assessment by Dr Dean in July 2007. He was then expressing a wish to attend college and appeared cooperative, but he presented with patchy memory difficulties and tended to make unrelated comments and questions: see [31] above. While at Newham, his teachers repeatedly reported memory problems and processing information, distractibility, inappropriate social engagement and other difficulties: see [33-36, 45-47] above. Away from school, discrepant results on testing in mid-2008 led to further detailed assessment, which in turn led to the conclusion that he had suffered a very significant reduction in memory function: see [42] above. In December 2009 Mr Ali gave the example of Jubair going to the shop for a particular purpose and failing to remember what it was, a problem similar to that noted by Mr Savage in his evidence about Jubair misinterpreting what was required during his time at Banstead: see [51] and [73] above. While at Banstead, memory difficulties were repeatedly highlighted as a significant problem: see [55-71] and, by way of specific example [55(ii), 59(ii), 68(i) and 70(ii)] above. In summary, all those who have observed him in detail over protracted periods have concluded that he has significant memory problems.

Cognitive, and specifically memory, difficulties have been perceived to be at the root of Jubair’s difficulties with independent travel, allied in the early days to physical difficulties attributable to his orthopaedic injuries. In December 2010 Banstead identified disorientation and reduced safety awareness as factors which meant that he would require full support to access the community. Although by May 2011 he had obtained his orange card, he was still unreliable on relatively straightforward journeys, and using the train to go to Sutton would require “a lot more work”. While “steady” progress had been made with his independent route finding in familiar environments, Banstead’s final report expressed the view that he would continue to require full support within new or complex environments and the discharge meeting highlighted the need for support when travelling on public transport. The Support Needs Guide again identified topographical orientation, attention and distractibility as risk factors even with familiar routes: hence the need for strategies even in that context (Footnote: ⁹⁰). Since leaving Banstead, he has remained unreliable even on familiar routes which he would by now be expected to have mastered securely (Footnote: ⁹¹).

The Defendant’s experts noted behaviour which they considered showed a deliberate attempt to feign illness or to exaggerate disability. Examples which loomed large in the evidence were not remembering experts’ names, ostentatious yawning and apparent fatigue and inability to count the number of fingers he was being shown. Taken overall, the evidence establishes that Jubair has on occasions, knowingly underperformed in the context of medico-legal examinations. However, even this finding needs to be taken in context: he has also shown extreme fatigue in the context of non-medico-legal medical appointments, where feigning would provide no obvious benefit (Footnote: ⁹²); and his inability to remember names has not been confined to the medico-legal setting (Footnote: ⁹³).

The high point of the Defendant’s case is the citizenship test. I have attempted to summarise the relevant primary evidence at [113ff] above. It is in short supply, because neither Jubair nor his support worker at the time gave evidence. However, on the evidence, I find that Jubair went to the test centre with his support worker having expressed his intention to do the test, went into the test room, was the only candidate there, and came out with the news that he had passed. I also find that he probably did not have outside assistance while taking the test. My reasons for this finding are as follows. First, on the evidence of Mr Coldham, he would have been likely to have been detected had he attempted to communicate with the outside world when doing the test. Second, there is no evidential basis for even a suspicion of corruption. Third, to have communicated with the outside would have made significant demands upon Jubair, who would have had to communicate the questions to the outside and receive answers in addition to the time required simply to answer the questions on the screen. While Jubair is familiar with using electronic devices, this would have imposed additional pressures on him. Fourth, there is overwhelming evidence (which I accept) that Jubair tends to become anxious and underperform when in unfamiliar or stressful circumstances. The test as such was not unfamiliar to him, but covert deception of the order required to communicate with the outside world would have been. Fifth, while I accept that taking the test would itself have imposed some stresses on him, passing it was an objective that he had been set out for a long time, as is evidenced by his two previous failures and other attempted previous bookings of the test. It was therefore at least something that he wanted to do, which may have affected favourably his state of mind when in the room.

Two other questions must be answered in order to put the citizenship test in its proper place with the other evidence in the case. First, why did he take it? And, second, how did he pass it? On the first question, I find that he probably developed the fixed intention to take it having been influenced by others who were not members of his family. They are not identified, but I consider it probable that they influenced him with ideas of going to Mexico. Whether, as Mr Ali suspected, they were “friends” who saw Jubair as a potential source of finance, is uncertain; but I reject the notion that Jubair decided to take the test without outside influence. Turning to the second question, there is very limited evidence about how he did it. However, I consider it probable that, spurred on by the fact that Sadek’s wife had taken and passed the test, he learned answers by rote and then struck very lucky indeed in the questions that came up. I accept the evidence from his family that they considered he was wasting his time. They did not think he was up to it, any more than anyone else who has dealt with him outside the medico-legal context (or, for that matter, a number of those involved in the medico-legal context) would have thought he was up to it.

The Court must confront the inconsistency between Jubair’s test results over the years since the accident, on the one hand, and the passing of the citizenship test on the other. Equally, it must confront the evidence, which on this point was unanimous, that for Jubair to have passed the citizenship test implies a level of cognitive ability which is inconsistent with his presentation over the years that the various witnesses had known him. It is also important to give due weight to the fact that he did manage to survive two years at Newham College (albeit with considerable support and assistance) and that, to the surprise of those responsible for his care and education, he passed his courses while there (Footnote: ⁹⁴). Throughout his time at Newham, it was clear to his teachers that he was struggling, particularly in relation to retention of information (Footnote: ⁹⁵). Taking his attendance at Newham overall, I accept the evidence of those who knew him, that he was struggling, that he did not wish to disclose the extent to which he was struggling, and that he required considerable assistance to enable him to attend as he did (Footnote: ⁹⁶). I reject any suggestion that he was feigning disability while there. The opposite is true – he was consistently trying to conceal it.

On this evidence a finding that his cognitive deficit attributable to the accident is not accurately reflected in the various test results that have been recorded over the years is inevitable. Equally, since I have found that Jubair passed the citizenship test, the evidence compels the conclusion that his retained cognitive function should have allowed him to function at a better level than he has on a day to day basis over years. However, it does not follow that Jubair has knowingly been feigning an exaggerated level of disability over the period since the accident. Having reviewed the history in detail for the purposes of writing this judgment I accept the evidence of those witnesses who rejected the possibility that Jubair could have deceived all those responsible for his care since the time of the accident. Without exception, I found those witnesses to be thoughtful, careful and impressive. I accept that treating clinicians and support workers do not set out with the same level of forensic scepticism as may be appropriate in a medico-legal context, but I also accept the evidence that clinicians will be alert to inconsistencies in behaviour that may indicate a lack of genuine presentation. I am particularly influenced by the evidence from Jubair’s time at Banstead, both documentary and as provided by the Banstead witnesses: I consider it supremely unlikely that Jubair could have fooled all of those who gave him close and detailed care and attention during the 9½ months that he was resident there for five days a week. I therefore find as a fact that the Banstead reports and, in particular, the Banstead final report and Support Needs Guide provide a reliable picture of Jubair’s genuine levels of functional ability to perform on a day to day level and of his support needs going forward as at that time.

This finding entails that, on a day to day level, Jubair has been performing less than optimally, despite having engaged constructively with the rehabilitation that Banstead provided. However, I also find that the root causes for this lie in the accident and its sequelae and not in a deliberate and fraudulent underperformance.

In my judgment, the explanations for his presentation since the accident are multi-factorial, complex and subtle. Jubair suffered what was without doubt a very severe brain injury. The medical profession has a very imperfect understanding of the effect of such traumatic brain injuries. That is shown by its inability to predict the outcome after such injuries and the fact that outcomes may vary widely. It is well known that functional recovery in such cases is not determined solely by the nature and extent of the physical injury to the brain. Dr Foster gave evidence, which I accept, that patients may adopt a sick role for a number of different reasons and that, amongst other consequences, adoption of a sick role may result in overdependence on others. While the outcomes from such injuries may vary, the majority fail to flourish and some lasting cognitive deficit is to be expected (Footnote: ⁹⁷). On all of the evidence I have no hesitation in finding that Jubair has suffered some lasting cognitive deficit as a result of the accident and that he is one of the majority who fail to flourish. The scope and extent of the deficit cannot be quantified with precision. It is not as severe as a number of the test results have indicated; if it had been, he would not have been able to pass the citizenship test. But the effects have been significant and profoundly damaging in their impact on Jubair’s everyday life, being imposed as they were on a person who was originally of low average IQ.

Looking at the history that I have summarised earlier in this judgment, Jubair’s recovery and rehabilitation initially gave reason for optimism, despite the severity of his orthopaedic and brain injuries. It is obvious, and I find, that initially he hoped that he would return to normality. To that end he engaged with the rehabilitation at Newham (such as it was) and Homerton and entertained hopes of returning to a normal life that would include playing football, going to college and becoming a policeman. In the period from mid-2006 to mid-2007 rehabilitation took a back seat as he was assessed as being not ready for Rehab UK and undertook the cranioplasty operation and the recovery period following that major surgery. By July 2007 it appears that a sense of realism was dawning because he was expressing anger at his disadvantages and some appreciation that he may not be able to be a policeman; but he was still intent on going to college. That he enrolled for and attended college was not an indication that nothing was wrong with him: rather, it was a marker of his determination to try to get back to living a normal life. His difficulties are well documented and, by mid-2009, he was being clearly advised that further normal education was not a realistic option. On the evidence, that was reasonable and correct advice. Instead, he was steered in the direction of further rehabilitation, first with Banstead and subsequently with Headway. All the time, apart from when in residential care, he was in the care of his family who provided an environment that was very protective, sedentary, and unstimulating. As I have said, this provides the explanation for the disparity between his positive engagement and progress while at Banstead and his relative lack of either motivation or progress when at home, at least until the post-Banstead period. Superimposed on this, he had to endure the litigation and medico-legal processes, both of which would have been (and I find were) profoundly depressing and frustrating for him, disabled as he was by real cognitive deficits and other physical injuries and a sense that he was being treated as “the bad guy”.

With this history, which is a very short paraphrase of the factual background that I have summarised more fully earlier in this judgment, it is to my mind clear that at some stage, probably in the period from about 2009 he shifted from his intense efforts to restore himself to a normal life to the adoption of a sick role. In this respect, I consider that Ms Makda’s perception that he had adopted what she called an “illness role” was correct. This was not initially motivated by a desire for financial compensation but by a deep seated realisation that he was not going to be able to function as a normal young man. Once he slipped into the role, it became intractable and pervasive. It provides much of the explanation for his sometimes bizarre over-acting and underperformance in the medico-legal context. It is not, in my judgment, a sufficient or satisfactory response to say that, at that stage, he was aware that if he presented as more disabled than he really was, he might recover more through the litigation process, though he would have been aware of that at a certain level. To my mind, the fair and correct response to the evidence is to recognise his conduct as the unsurprising reaction of a brain-damaged and physically injured young man whose future life and hopes have been grievously curtailed by the effects of the accident.

One of the effects on Jubair has been that, although on a day to day basis he tends to lack motivation and initiation, he has tended from the outset to become fixed on certain objectives even though those objectives are not realistically obtainable. Over the years, these fixed objectives have included going to university, joining the police, going to Mexico and taking the citizenship test. A second effect has been patchy memory in everyday situations. This is not inconsistent with his having fixed “grand” objectives such as I have just described, and it accounts for his difficulties in memorising routes, road safety, and incidents such as the shower in Torquay. A third pervasive feature of his presentation has been unreliability. I find that this is a consequence of the injury he suffered in the accident and that it will continue, such that strategies will always need to be in place to cope with the resulting problems that will arise. A fourth feature has been memory impairment which, while not as severe as a number of the test results would indicate, is significant. This memory impairment is associated with poor concentration and distractability, slowed information processing, problems with word-finding and dysarthria. A fifth feature is his tendency to exaggerate his abilities and achievements, of which there are many examples (Footnote: ⁹⁸). A sixth feature has been his lack of motivation and initiation on a day to day basis. This is largely a consequence of his brain injury, but it is exacerbated by three other factors that are established beyond argument by the evidence. The first factor is that, until relatively recently, he suffered significant and debilitating pain from his back injury: this is now reduced but by no means absent. The second factor is that, for all the efforts of the professionals who have worked on his rehabilitation, he has for the majority of the time been in the hands and home of his family who have been overprotective and have not pushed him as hard as they could to achieve greater levels of independence. Their motives have been of the best, but the effect has not assisted Jubair to develop and maintain consistent levels of motivation and initiation. This is likely to continue unless and until Jubair leaves home, which I consider later. The third exacerbating factor is that, since the accident, he has been conscious of what he has lost and has been limited to a restricted lifestyle by his (real) disabilities. This has contributed to a self-perpetuating cycle of boredom (Footnote: ⁹⁹) and frustration which, unsurprisingly, has contributed to a lack of motivation and performance. His resulting loss of confidence has contributed to a seventh feature which has manifested itself as an anxiety about how he is presenting himself, typified by Dr O’Brien’s observation to Ms Makda (Footnote: ¹⁰⁰) that he wanted to be appropriate and be seen as a good person: this characteristic is reflected in a number of his responses in the medico-legal context, to which different experts have had different reactions. He is also prone to anxiety leading to reduced performance in unfamiliar circumstances. An eighth feature has been a failure to read social circumstances properly with mild disinhibition and some impulsivity, such as his misreading of how he should react when at Clusters (Footnote: ¹⁰¹). A ninth feature is that he suffers from debilitating levels of fatigue. In addition, he is left with slurred speech, which is variable but which means that he sometimes cannot be understood. He is psychiatrically vulnerable and prone to low mood. He has epilepsy and is incapable of driving. His life expectancy is slightly reduced. In addition, he has suffered the physical injuries and consequences outlined earlier in this judgment.

My findings do not mean or imply that he is never able to initiate activity or that he will always fail to execute journeys if left to himself: there is clear evidence that on occasions he does initiate and manages to execute journeys (Footnote: ¹⁰²). But he is not capable of maintaining such levels of initiative or performance on a reliable day to day basis.

The Defendant submits that it is not possible to conclude that Jubair’s presentation has been genuine (as opposed to knowingly contrived) in the light of the evidence given about the implications to be drawn if he passed the citizenship test and some of the comments and discrepancies and other pointers to deliberate exaggeration over the years. It is submitted that passing the test shows motivation, initiation, a good ability to concentrate and a lack of distractibility, good use of the English language, good verbal reasoning skills, good ability to process information of a complex nature, an ability to exercise judgment in answering and an ability to work fast. There is force in these submissions, but they can be overstated. As I have said, one of the features of Jubair’s injury is to lead him to fix on certain objectives, of which passing the test was one. Precisely how he managed to pass is unclear, but it seems likely that he was in part motivated by others who were keen that he should go on holiday to Mexico; and, on the evidence, if he passed it unaided, he did so at the third attempt and after having it in mind and, probably, preparing for many months. As Dr Wade’s experience of doing the test in 21 seconds shows, it is essentially a test of knowledge and, in absolute terms, Jubair was not working very fast; and the period of just over 20 minutes within which he did the test was consistent with the periods of concentration that he had managed to achieve elsewhere. Furthermore, it was in an environment that he had chosen to attend for the third time and which would not have presented external distractions. Even so, the evidence on all sides is that, if he is capable of passing the test, he should be capable of performing at a higher level than his normal presentation since the accident.

I accept and find that some of his comments to doctors have shown an awareness that the level of his recovery of damages is dependent upon the severity of his disability, and also that some of his answers (Footnote: ¹⁰³) and conduct (Footnote: ¹⁰⁴) have been deliberately false. However, as I have said, if Jubair was suffering from any substantial injury at all (which I am confident that he was) I am not surprised that he has found the medico-legal process profoundly boring and frustrating and I am not persuaded that knowing attempts to mislead doctors lead to the conclusion that his presentation over the years and the claim as a whole is fraudulent. Nor am I persuaded that, when read in context, it can be shown that he was significantly better functionally in the early stages of his recovery than he is now. I deal specifically with the question of his independent mobility below; but, in general it is necessary to read the references in the context of the stage of recovery that Jubair had reached when the observations were made.

The Defendant relies primarily upon two aspects of the evidence about mobility in support of its case. The first aspect is the existence of references relatively early on to Jubair either jogging or playing football. Seen in context, I reject the suggestion that Jubair has been able to jog or play football in any meaningful way (by the standards of a fit young man) since the accident. References to Jubair jogging on a treadmill or playing football in (for example) July 2006 (Footnote: ¹⁰⁵) must be read taking into account the overall state of his disability, which precluded any normal activity of the kind.

The second strand of evidence upon which the Defendant relies is evidence that Jubair was walking and travelling “independently”. Early references to walking “independently” (Footnote: ¹⁰⁶) or “unaided” (Footnote: ¹⁰⁷) generally make clear that they mean that he was walking without physical assistance, not that he was walking any significant distance on his own. That reflects the reality of what was happening in 2006 and thereafter. I reject the Defendant’s submission that Jubair went to college independently (i.e. unaccompanied) in 2007-2009: I accept the evidence that he was always accompanied by friends or family and that the furthest he would generally go on his own was to the shop or the bus stop that were very close to home (Footnote: ¹⁰⁸). Similarly, I accept the evidence that he would not routinely go to his GP alone: if he ever attended alone, it was rarely (Footnote: ¹⁰⁹). Taken overall, I accept the evidence that Jubair has not been able to undertake travel on his own save for very short journeys and, with the aid of strategies, relatively straightforward journeys with which he is familiar. So, with the aid of strategies and repetition, he would normally be able to travel to places such as the local gym, his gp, or Stratford; but even so there is the risk of error or of unsafe behaviour because of distraction. An additional difficulty arises with routes that are not familiar, where he remains significantly vulnerable and at risk of getting lost.

The Defendant also places reliance upon the contents of Jubair’s financial records and Facebook pages. I do not find either to be of any great assistance. The financial records show withdrawals at a distance from home, sometimes at night. They are consistent with Jubair being with friends or support workers and do not demonstrate levels of independence that are inconsistent with Jubair’s case. Equally, they do not evidence impulsivity: Jubair makes frequent small adjustments which do not provide significant evidence one way or another. Similarly, I find the fact that he has operated more than one bank account, debit cards and Paypal provides little assistance beyond confirming that his extreme test results are unreliable (Footnote: ¹¹⁰). Having read his Facebook pages, I find them of limited assistance. They show a tendency to identify with the head-injured patients he had met at Banstead and Headway (though there is some contact with people he had known at school). They do not demonstrate a close circle of real friends and do not show more than superficial skills, even if on occasion he replied promptly to convey some pieces of information. His assertion that he knows six languages is untrue. It is of no assistance save as an example of Jubair’s tendency to exaggerate his abilities.

In summary, Jubair suffered significant and complex cognitive deficits. On the imperfect understanding of the medical profession (and the court) about how the brain functions after serious traumatic injury, it would be anticipated that he should be able to function better, specifically because his passing of the citizenship test demonstrates residual cognitive abilities which, if replicated on a day to day basis, should lead to a higher level of functioning. However, his presentation is substantially affected by the other aspects of his medical history, the fact that he started as a person of low average IQ, and the fact that he has now adopted the sick role for the complex reasons that I have tried to outline above. In his overall and day-to-day presentation, Jubair is not a malingerer. The best marker of his functional abilities and prospects for future improvement is provided by the observations and assessments over 9½ months while he was at Banstead.

These findings lead to the question whether Jubair may have the ability to perform better after this litigation is over. On this point, I accept Dr Powell’s evidence that there may be a thought in the back of Jubair’s mind that it is not in his best interests to do well and that once the case is resolved he may show a different level of motivation. That evidence must, however, be balanced against the fact that Jubair has now been entrenched in his current level of performance for a long time and that even his engagement at Banstead produced only limited improvements. I therefore find that there may be some improvement in motivation when this case is over, but that does not mean that his difficulties will resolve either completely or substantially. In my judgment, there are significant cognitive deficits which will remain and which will manifest themselves in lack of motivation and unreliability in everyday living. In reaching this conclusion, I take into account the demotivating effect of my findings later in this judgment about Jubair’s future employment prospects.

A problem of incontinence was first mentioned in November 2006 (Footnote: ¹¹¹), and there are numerous references to faecal and urinary incontinence thereafter. I do not doubt that Jubair has suffered and still suffers from urgency and occasional incontinence. Steps have prudently been taken to investigate the causes of these problems, but they had not been completed before trial. None of the experts at trial provided any substantial or satisfactory explanation of how the accident may have caused these problems and, although there is no suggestion that they existed before the accident, it is not self-evident that they must have been caused by it. The position on the evidence, therefore, is that there is a suspicion that the problems may have been caused by the accident, but it has not been proved that they were.

When Jubair left Banstead, their view was that he would be at a substantial disadvantage in seeking employment and that a failure to get employment would be demotivating (Footnote: ¹¹²). To similar effect, Dr Foster considered that obtaining employment would by psychologically beneficial, though he recognised that the limit of Jubair’s abilities might be some voluntary or therapeutic (rather than remunerative) employment (Footnote: ¹¹³). In his joint statement with Dr Wade shortly before trial the experts agreed that Jubair “would benefit from vocational engagement which would help to structure his week, improve his self esteem and provide opportunities for socialisation outside the home.” But their view was that “Jubair’s employment prospects are likely to be restricted by virtue of his brain injury, but that it is difficult to judge the extent of those restrictions.” Dr Bradley’s view was that there was no realistic prospect of his being able to train for or hold down any form of full-time employment, though it may be possible for him to work in a supportive environment on a part-time basis at some time in the future. Other experts expressed opinions to similar effect.

These opinions were expressed before trial and before the experts were taxed in evidence about the passing of the citizenship test. However, Professor Collin agreed in evidence, and in the knowledge of the citizenship test, that Jubair would be at a “monstrous” disadvantage on the open labour market.

In my judgment, the pre-trial assessments by Banstead and the experts, to which I have referred above, were realistic and Professor Collin’s view was correct. Even if the conclusion of the litigation provides a measure of incentive for Jubair to get out and about, I consider it exceptionally unlikely that Jubair will ever obtain or hold down remunerative employment. There are numerous factors which contribute to this conclusion. The first is the evidence to which I have referred, particularly that of Banstead and Professor Collin. Second, in the highly competitive labour market which is likely to continue for the foreseeable future, the prospects for a person who started out with low average IQ, has suffered the serious cognitive and behavioural effects of the accident to which I have referred elsewhere in this judgment, and who cannot undertake any heavy or repetitive manual occupation or any occupation which does not enable him to move around from time to time, are bleak, if not non-existent. Third, and superimposed on the first two reason, is the fact that Jubair is now entrenched in the sick role.

Reference was made to the possibility of volunteering for part time “work” at Headway in due course. Ms Phillips suggested that he might start as a volunteer and progress to paid employment. This would have the advantage of being in a familiar environment, but it is a speculative prospect at best. While I do not doubt that Headway would be keen to assist Jubair in any reasonable way, there is no substantial basis for a finding that he will obtain a voluntary post, still less for a finding that such a voluntary post will progress, or is likely to progress to paid employment. Not only is there no evidence about the frequency with which such posts become available, but there is no evidence that it would involve work which Jubair could do or hold down on a regular basis: and his experience at Clusters does not give grounds for optimism.

It is also right that some employers make employment available for persons under significant disability – a project by Sainsbury’s in conjunction with MIND was mentioned at trial. But there is no certainty or even probability that such work would be readily accessible to Jubair or that he would get it if it was. In addition, such work is unlikely to be attractive to Jubair and his performance thus far in relation to work placements that he considers unattractive suggests that he would not be motivated to obtain it or hold it down (Footnote: ¹¹⁴). Ms Makda suggested that any gainful employment would have to be based on his interests, which she identified as football or catering – a narrow field of opportunity.

Ms Makda also referred, in re-examination, to a service provided by the Papworth Trust, which would send someone to a client’s home to assess what was available locally, which could lead to a period of vocational rehabilitation for up to a year costing £10,000. Her evidence was that such a period of rehabilitation could lead to a vocational placement. However, no firm proposals were advanced and it would in my judgment be mere speculative optimism to attribute any residual earning capacity to Jubair on account of the possibility of such a placement, or to assume that the expenditure of £10,000 would lead to remuneration in excess of that figure. Ms Philips contemplated achieving a similar placement within about 5 years without input from an organisation such as the Papworth Trust. Even if such a placement were to be remunerated, which on the evidence is uncertain, it would be likely to be at minimum wage levels at best. Viewed overall, this evidence does not lead to the conclusion that Jubair has any measurable residual earning capacity based on his prospects of achieving a vocational placement.

It is no doubt for these or similar reasons that Mr Ali conceived the idea of a family business that would provide Jubair with essentially therapeutic occupation. For reasons identified elsewhere, his idea was not and is not feasible (Footnote: ¹¹⁵). The absence of employment will itself contribute to the cycle of demotivation, which in turn will affect mood and cognitive function on a day to day basis.

The Defendant submits that Jubair is under a duty to mitigate his loss and that a persistent refusal to undertake low-level work would be a breach of that duty. While I accept that there is no cultural bar to such work, my finding that he will not do it is founded upon the conclusion that the prospect of any remunerative work being available and Jubair managing to obtain it and hold it down is remote. In circumstances where I am not satisfied that there is any real likelihood of Jubair being able to obtain remunerative employment even if motivated to do so and also where any lack of motivation is itself largely or wholly attributable to the effects of the accident, the question of failure to mitigate does not arise.

Given these findings, and my findings earlier about what Jubair would have done but for the accident, I reject the Defendant’s submission that a broad brush approach should be adopted, such as was adopted in Blamire v South Cumbria Health Authority [1992] PIQR Q1. Loss of earnings falls to be calculated by adopting a multiplier/multiplicand approach, though some adjustment to the raw figures produced by adopting that approach fall to be made: see Annexe B.

I have no doubt that the ideal arrangement from the point of view of encouraging Jubair to maximise his independence would be for him to move to independent accommodation with support to ensure that he maximises his abilities and opportunities. However, I am not persuaded that will happen. A much more realistic assessment emerges from the information that was provided to Ms Phillips successively in 2009, 2010 and 2011. In 2009 she was told that Jubair wished to stay at home with his parents, whether or not he married. In 2010 Ms Phillips regarded it as established that Jubair and his parents would live together until his parents passed away. In 2011 Mr Ali spoke of giving Jubair the opportunity to live independently, but it still seemed to Ms Phillips that he would remain living with the family. I accept that assessment, which is supported by other evidence in the case. Jubair is rooted in his Bangladeshi Muslim faith and culture. That provides a strong pull for the youngest son to stay at home, even though he is now not able to look after his parents in their old age. Second, another consequence of his faith, culture and family background is that he is a member of a close and supportive family who are unlikely to exert pressure upon him to leave his parents’ home for the uncertainties of living elsewhere. Third, for the reasons I give below, he is unlikely to marry and start a family of his own, which would provide an obvious trigger for moving out of his parents’ family home. These factors all support Ms Phillips assessment and, viewed overall, it cannot be said that a decision to stay at his parents’ home is either irrational or unreasonable. That is so, even though it may make more difficult the task of assessing the level of damages necessary to put Jubair as nearly as possible back in the position that he would have been in had the accident not happened. That task must also take into account that a time will come when Jubair’s parents and the home that they now provide are no longer there. When that happens, it is possible that Jubair will move in with another member of the family who will provide him with support; but this cannot be predicted with any degree of confidence.

I have reviewed the evidence relating to a possible marriage for Jubair at [12] and [139] above. I accept that, but for the accident, Jubair would probably have married. Given his adherence to his faith and culture, it is most likely that he would have contracted a Muslim marriage, which would have been arranged by his father if Jubair had not independently met someone from his cultural background who he wished to marry. As a consequence of the accident, arranging a marriage would be extremely problematic for the reasons explained by Mr Ali on a number of different occasions (Footnote: ¹¹⁶). Even if a marriage were to be arranged, Jubair’s residual disabilities and character would make a conventional marriage hard to sustain: it is not irrelevant that the parties to this litigation openly contemplated treating a potential wife as a proxy for a support worker and carer. This seems an unpromising (though not necessarily impossible) foundation for marriage in the 21^st century United Kingdom, whatever the cultural and religious background of the spouses. I therefore conclude that Jubair is unlikely to marry.

The post-Banstead regime, involving more than 25 hours support worker input together with multiple external specialist inputs and heavy case manager involvement was a justifiable attempt to maximise Jubair’s independence when moving from the specialist residential regime at Banstead back into more normal life: Ms Jeffreys’ rationale was to try to get Jubair to a stage where he could contemplate living independently (Footnote: ¹¹⁷). In the event it was not as successful as might have been hoped, for reasons examined earlier in this judgment, though it undoubtedly provided valuable and necessary assistance to Jubair and real gains were made, particularly in the period approaching trial. It was instituted on proper and considered expert advice and was reasonably undertaken.

For the future, the experts provided a bewildering array of different views expressed both in reports and in evidence about the best regime for the future. The differing views on care were largely the product of each expert’s views on the proper assessment of Jubair’s residual disabilities, or lack of them. Important variables considered by the experts included whether or not Jubair would continue to live at home, whether he would marry and be cared for by a spouse, and whether he would obtain remunerative employment or, if not, how he would spend his days. By the time of trial, there was something approaching consensus that the current level of support worker input would be unjustifiable in the long term and that, at some stage, there would need to be a reduction to a level which tended to be put at about 5 hours per week by the experts acting for the Defendant and rather higher by those acting for the Claimant.

The findings that I have made about Jubair’s residual disabilities and the probability that he will continue to live at home, unmarried and unemployed, do not exactly fit the assessment of any of the experts, though they more closely reflect the views of the experts instructed on behalf of the Claimant. On my findings, including the finding that the Banstead Support Needs Guide provides a generally reliable indication of the risks facing Jubair (Footnote: ¹¹⁸), the provision of care for the future faces a number of challenges. The first is motivation on a day to day basis: it is imperative that Jubair be firmly encouraged to get out of the house to engage in normal and constructive activities that approximate to normal life as closely as possible, bearing in mind that he will not be in remunerative employment and that he should be able to perform at a higher level than he has to date. Banstead correctly identified the adverse effects of low mood on Jubair, and the regime must be directed to avoiding, so far as possible, the boredom and frustration that has characterised the years since the accident. That said, it cannot be a good use of support worker time to act as an alarm clock on a daily basis. The second is that, although he will be reasonably secure in undertaking short and familiar journeys (such as to the gym, the local shop or his local gp) he is not and will not be reliable in relation road safety or route finding if left on his own long-term. The third is that he will need support when undertaking any journeys that are longer or more complex or which are unfamiliar to him. The fourth is that, more generally, Jubair will continue to need support in new or stressful environments. These may arise at any time though some (such as the eventual loss of his parents and the need to move home) are predictable. Generally, as recommended by Banstead, he will need support to ensure that he retains and implements strategies for everyday living and maintains his general levels of fitness. While he lives at home, his daily domestic needs will be catered for by his mother and close family. After the demise of his parents, he will need some support and encouragement with domestic tasks.

Short of providing the number of hours that has been available in the recent past, which is not sustainable, the provision of support such as I have just outlined will require considerable flexibility in provision. There is something of a tradeoff to be applied: the greater the flexibility of the (reduced) hours of support to be provided, the greater will be the need for management by a supervising case manager. The case manager will also need to keep an eye on the need for other specialist interventions.

I have therefore concluded that, after a suitable period of transition, support worker availability should stabilise at about 10 hours per week. I reach this conclusion on all of the evidence but with particular reference to the evidence of Dr Williams, whose contribution I found particularly perceptive and useful (Footnote: ¹¹⁹). This weekly provision may entail that there will be no support on some days, with a number of hours support on others. But in my view, this is the minimum provision that can safely cater for the needs which I have just summarised. It is also intended to cater for the fact that, even if Jubair has periods when he can manage on less, there will be times of change or other exceptional demand that justify an overall assessment of 10 hours per week. Once his parents are no longer available to provide gratuitous care, their contribution (which I assess below at 5 hours per week) will have to be provided by paid support since I do not consider it safe to assume that other members of the family will be able to provide that level of support regularly and reliably. For the purposes of quantifying damages, it should be assumed that his parents will be able to provide care for Jubair for 20 years from 1 January 2013, but not thereafter.

This level of support will require case manager input that is more regular than would have been required if blanket support worker cover had been provided. In 2009 Ms Phillips’ assessment of required case manager support was 84 hours in year one and 48 hours per year thereafter. At trial Ms Makda was suggesting 56 hours in year one and 36 hours thereafter. Because I consider that the challenges facing those caring for Jubair are greater than envisaged by Ms Makda, I find that she has underestimated the provision that is likely to be required. In my judgment, the allowance originally made by Ms Phillips is reasonable, taking the starting date as the conclusion of trial or (for convenience) 1 January 2013 – i.e. 84 hours in 2013, reducing to 48 hours per annum thereafter.

By the end of trial, Ms Makda was supporting 5 hours per week of gratuitous family support. Given my finding that the incontinence issues (and therefore any associated additional washing) are not attributable to the accident, I consider that to be a reasonable assessment going forward. The defendant submits that future receipt of carers allowance should be assumed and should be set off against any sums for gratuitous care. Carer’s allowance is payable to people over 16 who spend at least 35 hours pw caring for a recipient of higher or middle rates of the Care Component of DLA, Attendance Allowance, or Constant Attendance Allowance (Footnote: ¹²⁰). No legitimate entitlement to Carer’s Allowance will therefore arise. I assume that no illegitimate claim will be made and am certainly not prepared to find to the contrary. No question of set off therefore arises.

I assess the costs of future care and other financial claims in Annexe B to this judgment.

Section 1 of the Mental Capacity Act 2005 sets out principles that apply for the purposes of the Act. They include that:

A person lacks capacity in relation to a matter for the purpose of the Act if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain (Footnote: ¹²¹). In order to satisfy the statutory test of being “unable” to make a decision for himself, it is necessary to prove that he satisfies at least one of four statutory criteria. The criteria are that he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision. (Footnote: ¹²²) The information relevant to a decision includes information about the reasonably foreseeable consequence of (a) deciding one way or the other, or (b) failing to make the decision.

The Claimant submits that Jubair lacks capacity. That is disputed by the Defendant who submits that the expert evidence is inadequate to overturn the presumption of capacity. On any view the issue is finely balanced and the views of the experts have shifted from time to time in accordance with their overall views of the case. It appeared that all experts were conscious of the statutory assumptions and criteria for the test of capacity.

In the first Joint Report of Dr Williams and Dr Foster, Dr Williams accepted that Jubair must be assumed to have capacity unless further evidence suggests to the contrary. This was a departure from the opinion she had expressed in her reports. In their December 2011 report in relation to capacity they were agreed that Jubair could not manage his legal affairs. While he appeared to them to be able to manage small sums of money independently, they had concerns about whether he had capacity to administer large sums of money. While they agreed they had seen no evidence of impulsive behaviour or excessive expenditure, they felt that there were grounds for concern in the light of Jubair’s understandably protected life and inexperience. They went on to agree that “if the court determines that [Jubair] has capacity to manage his own finances he will need to be supported in his decisions and choices”. Alternatively, if he lacked capacity then the decision should be revisited from time to time in the future. When Dr Foster and Dr Wade prepared their joint report in October 2012 on capacity they deferred to neuropsychological opinion; but they too agreed that if the court determined that Jubair had capacity to manage his finances, he would need to be supported in his decisions and choices, while if on the other hand the court determined that Jubair lacks capacity it was their opinion that the issue should be revisited in future.

In his August 2012 report, Dr Wade had expressed the view that Jubair is not able to plan ahead and remains distractible and occasionally impulsive. Thus he remained of the opinion that he would not be able to manage his own financial affairs and that he would need support with his litigation. In cross examination, he made plain that he did not regard the passing of the citizenship test as being a comprehensive test of frontal lobe function or of capacity: he remained of the view that he could persuade Jubair to part with a substantial sum of money (Footnote: ¹²³).

Dr Foster’s views on capacity shifted with time, which was reflected both in his joint statements and his reports. In his October 2011 report he expressed concerns about Jubair’s level of insight and judgment (Footnote: ¹²⁴), but by October 2012 he was more hesitant and considered that he was no longer able to determine whether Jubair was incapable of managing his legal affairs (Footnote: ¹²⁵).

Having provided joint statements with Dr Foster, Dr Williams provided a final joint statement, this time with Professor Collin, in October 2012. On capacity, Dr Williams continued to express the view that Jubair cannot manage his legal affairs and is unlikely to be able to manage his own finances independently. Professor Collin felt, on balance, that he had regained mental capacity and was capable of handling his own litigation. She felt she had insufficient information to confirm that he had the mental capacity to manage his affairs and finances should this include a substantial settlement: this reflected the view given in her July 2012 report that she was unable to come to a decision on his abilities to handle large sums of money (Footnote: ¹²⁶).

In April 2010 Dr Williams’ clearly expressed view was that, on the basis of her assessment of Jubair, he did not have and would not have capacity (Footnote: ¹²⁷). That remained her view as expressed in her report shortly before trial, though this reflected a shift from the view expressed in her first joint statement with Dr Foster (Footnote: ¹²⁸). When she gave evidence, it remained her view that he lacked capacity but she was troubled by the perception that, if he had passed the test, then it appeared to her that much of the input upon which she had been basing her opinion was false, in which case she did not know how to respond (Footnote: ¹²⁹).

In November 2010, Dr Bradley and Dr Gill were agreed that Jubair did not have capacity to manage the litigation or large sums of money. One year later, they remained of the view that Jubair did not have capacity to conduct the present litigation or to handle large sums of money because he seemed to lack the ability to “use or weigh” information appropriately. By the time of their October 2012 Joint Statement, the position had changed and there was now a divergence of view on the question of capacity. Dr Bradley’s view remained that Jubair’s capacity to conduct litigation or handle large sums of money was impaired. Dr Gill now agreed that there would be concerns on these aspects, but “on consideration thought that there were not reasons by way of mental illness to depart from the presumption of capacity”. Both experts now thought that the question of capacity was for other experts.

When he gave evidence, Dr Bradley maintained that he was in a position to make a contribution in relation to the issue of capacity, and maintained the view that Jubair lacked capacity because he lacks judgment (Footnote: ¹³⁰). It is worth noting that Dr Gill had been specifically asked for his opinion on capacity when preparing his second report in October 2011, and he gave it. On the basis of the information then available to him he expressed the view that, while Jubair had the capacity to manage small sums of money on a day to day basis, he did not have the capacity to manage large sums and should be regarded as lacking capacity to litigate or manage large sums because of impulsivity (Footnote: ¹³¹).

Dr Powell and Dr Walton addressed the issue of capacity in their third Joint Statement, in October 2012. They were agreed that assessing capacity is difficult. Dr Powell’s view was that, on the balance of probabilities, Jubair lacked capacity to manage his finances and litigate. This view was supported by the fact that Jubair had suffered a very severe head injury and had demonstrated cognitive impairments in memory, attention and executive skills consistently during interview and consistently in everyday life. Dr Walton’s view was that there is evidence to suggest that, on the balance of probabilities, Jubair retains a sufficient level of intellectual functioning, memory and reasoning ability to be regarded as retaining the capacity to litigate and manage his financial affairs. He did not agree with Dr Powell’s assessment that there is evidence of poor judgment in some of Jubair’s more extreme behaviour. Dr Walton also relied upon Jubair’s academic achievements both at Newham and Banstead and his passing of the citizenship test.

Dr Powell’s reports were consistent in expressing the view that Jubair lacked capacity (Footnote: ¹³²). When he gave evidence he remained of the view that Jubair lacked capacity though he was now in significant doubt on the issue because of the complexity of the overall picture of Jubair’s abilities (Footnote: ¹³³). Dr Walton’s final position in evidence was that he could not express an opinion one way or another.

While it is correct that other experts tended to defer to the neuropsychologists, I do not accept that the other experts were unable to provide assistance on this issue. This is particularly true in circumstances where Dr Walton felt unable to express a view, which in my judgment was a reflection of his ambivalent attitude to the role of clinical observation and judgment in forming an overall assessment of the case. For my part, I have found the clinical observations and the assessments of the other experienced experts of assistance in reaching a conclusion on all of the evidence. Direct support for a conclusion that Jubair does not have capacity to manage his property and affairs comes from the evidence that I have just summarised. Dr Wade’s observation that he could persuade Jubair to part with a substantial amount of money (which I am confident is correct) implies that Jubair would not be able to use or weigh information properly, as he would be unable to foresee the consequences of his decision. Dr Foster’s concerns, expressed in October 2011, about Jubair’s insight and judgment were well founded and are supported by Dr Bradley and Dr Gill’s agreement in their earlier joint statement that he would have difficulty “using or weighing” information. Dr Bradley’s evidence that Jubair lacks judgment has ample support in the history of this case, as does Dr Gill’s expression of opinion in his October 2011 report. And, in the light of the findings I have made above about Jubair’s condition, the views expressed by Dr Powell and Dr Williams in advance of trial to the effect that Jubair lacked capacity were, soundly based. This conclusion is not prevented by Dr Williams’ concerns when giving evidence: her inability to respond during cross-examination was the result of her inability to resolve the conflict between his historical presentation and his passing of the citizenship test. The findings of this judgment have resolved the conflict as set out above. I am confident that if she had been asked for her views on capacity on the assumption that the Banstead assessments were reliable, she would have maintained her opinion that Jubair lacked capacity and, in my judgment, she would have been right to do so.

The conclusion that he does not have capacity to manage his property and affairs is also supported by the Banstead assessment that he is impulsive and very suggestible; and that, while his mental arithmetic was adequate for small numbers he became confused with larger numbers; and by the recommendation that he required support with managing all personal finances including large amounts of personal money, complex finances, bills and benefits (Footnote: ¹³⁴).

In the result, I conclude that, on the balance of probabilities, Jubair does not have capacity to manage his property and affairs after receipt of a substantial award of damages.

There was a dispute on the appropriate life multiplier to be adopted. The claimant submits that the whole life multiplier should be calculated by reference to Table 28 of the Ogden Tables, i.e. the Table giving “Multipliers for pecuniary loss for term certain”. By contrast, the defendant argues for Table 1, which gives “multipliers for pecuniary loss for life (males)”.

This dispute is not novel. It was addressed by the Court of Appeal in Royal Victoria Infirmary & Associated Hospitals NHS Trusts v B (a child) [2002] Lloyd’s Rep (Med.) 282. The Court of Appeal held that, where the medical evidence led to an expectation of life that was agreed (or found by the court), there was no justification for applying a further discount for further contingencies: see Tuckey LJ at [24] and Sir Anthony Evans at [40].

A number of first instance decisions on the point followed, both before and after the insertion of a paragraph in the notes to the Ogden Tables indicating that, in some cases, adoption of Table 28 will lead to too high a multiplier. Recently, in Smith v LC Window Fashions Limited [2009] EWHC 1532 (QB) Cranston J addressed the issue at [40-43]. Having identified the issue he concluded at [43] that Table 1 was the appropriate table on the facts of that case because:

“the Royal Victoria principle applied only where, on the medical evidence, the court can determine exactly how long an individual in a particular case can be expected to live. In [Crofts v Murton, another first instance decision], as in the present claim, the medical evidence did not decide the overall expectation of life, how long the claimant would live. Rather it determined by how much his pre-morbid statistical life expectancy had been shortened. There is no double-counting of mortality by use of Table 1.”

Later, in Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) Swift J reached the opposite conclusion at [88-105]. In the course of that passage she said at [100]:

“The paediatric neurologists in this case have assessed the claimant’s life expectancy by reference to his mortality risks as a whole, not just those risks associated with his cerebral palsy. This is not one of those cases … where the medical evidence relates only to the reduction in life expectancy caused by a number of identified factors specifically relating to the claimant and the injury which is the subject of the claim. The predicted life expectancy which I have determined is a specific finding relating to the individual life expectancy of this claimant.”

On these authorities, the determining factor in deciding whether to adopt Table 1 or Table 28 is whether the medical evidence leads merely to a finding that a person’s statistical life expectancy has been reduced by various factors specifically relating to the claimant and the injury that is the subject of the claim, in which case Table 1 is appropriate since it will introduce the statistical element of the exercise; or whether it leads to a finding that the claimant has a given life expectancy based upon his mortality risks as a whole, in which case Table 28 is appropriate since the finding of life expectancy will have involved a more extensive and refined exercise which examines all of the claimant’s mortality risks and therefore renders it inappropriate to regard him as one of the class who are subject to the statistical mortality risks for which Table 1 provides. Put more simply, the question is whether the Court finds either (a) that the claimant’s statistical life expectancy is reduced (in which case Table 1 applies) or (b) that the Claimant has a certain life expectancy (in which case Table 28 applies). Resolution of the issue is therefore fact sensitive and depends upon the nature of the exercise undertaken by the medical experts in each case.

In her first report (Footnote: ¹³⁵), Dr Williams started with United Kingdom mortality tables, which take into account the “vicissitudes of life.” She described how she would then adjust the starting figure by reference to features specific to Jubair (which at that point did not include epilepsy). Her conclusion, after giving “careful consideration to all the clinical factors in this case” was that Jubair’s “life expectancy (average further years of life) is likely to be of the order of over 59 years”. At trial she explained her approach in greater detail. The starting point would be to look at the Ogden Tables. She would then reach a view that was tailored to the individual case. She regarded the statistics as a framework on which one would superimpose the specific concerns of the particular case. She would do that by looking at material such as the Strauss tables, which refer to various groups of individuals. Within the papers the patients are grouped with certain characteristics in separate sections. So she would look at matters such as the ability to feed, mobility, and whether the patient was conscious, and would then seek to fit the patient in question into one of the groups. She would then adjust for the fact that life expectancy in California is less than in Britain, making the adjustment on a percentage basis. She would then look at specific problems affecting the individual patient’s case. Epilepsy would be one such factor. The figure that she ultimately reached would be one that took into account factors that applied to the patient in question and makes the fit appropriate to him, though it could apply to others. Her objective was to get a “fit” that was specific to the patient in question.

Professor Collin’s approach was similar. In her report (Footnote: ¹³⁶), she referred to Jubair’s injuries. She also referred in passing to a family history for vascular diseases and diabetes before giving her opinion that “considering the head injury and epilepsy alone, I would anticipate that there is a likely reduction in life expectancy of between 5 and 8 years.” She said in evidence that she regarded the exercise as being both a clinical prediction of the actual number of years of life expectancy and also one based upon premorbid life expectancy based on statistical methods then adjusted by reference to factors specific to the individual.

In his reports, Dr Foster approached the question of life expectancy by assessing the likely reduction in life expectancy related to Jubair’s brain injury and the risk or occurrence of epilepsy (Footnote: ¹³⁷). In their December 2011 joint statement (Footnote: ¹³⁸) Dr Foster and Dr Williams agreed that “on the balance of probabilities Mr Ali’s life expectancy is of the order of 57-58 years, to the age of 80-81 years.”

Later, Dr Foster and Dr Wade agreed in their joint statement (Footnote: ¹³⁹):

“We note that there is likely to be a small reduction in Mr Ali’s life expectancy by virtue of his brain injury with an additional element associated with his post-traumatic epilepsy. We note that epidemiological evidence is limited in this field, but are agreed that his life expectancy is likely to be reduced, on the balance of probabilities, by between 4 to 7 years as a result of his brain injury and post-traumatic epilepsy.”

Relying upon the joint statement of Dr Foster and Dr Wade, the Claimant submitted in its opening submissions that adopting a mid-point of 5.5 years “produces a life expectancy to age 82.09.” This led to the submission that “a life expectancy to age 82.09 represents a life expectancy of 57.92 years. The multiplier for 57.92 years is 30.81 using Table 28. The Defendant contends for a multiplier of 29.56 applying Table 1.”

In my judgment what each of the experts has done is to start with Jubair’s statistical life expectancy and then to assess the reduction that should be made from that statistical figure because of the consequences of the accident. This is clear from the terms of the reports of Dr Williams, Professor Collin and Dr Foster and the terms of the joint statement of Dr Foster and Dr Wade that I have identified above. The joint statement of Dr Williams and Dr Foster is equivocal because it specified an age; but even here, the identified age was the product of applying a reduction to something else, and when regard is had to the terms of their respective reports, it is clear that the joint statement must reflect the methodology that each had adopted in the reports.

The high point of the Claimant’s submission is the oral evidence of Dr Williams. However, Dr Williams did not say that she had identified Jubair’s actual life expectancy. The most that she could say was that she had incorporated as many features that were specific to him as possible, though those features were still superimposed on the statistical model.

I therefore reject the claimant’s submission and hold that, on the facts and evidence in this case, Table 1 is the appropriate table. This conclusion is also supported by the terms of the claimant’s submission, cited above, which is expressly based upon the joint approach of Dr Foster and Dr Wade, involving a loss of life expectancy. The experts did not purport to state that Jubair’s life expectancy was a term certain either of 82.09 years or any term. The appropriate life multiplier is therefore 29.56.

The Claimant submits that an appropriate award is £175,000. The Defendant contends for £75,000.

The JSB Guidelines (11^th Edn) provide a starting point but cannot be applied with any precision:

The Claimant relies upon the following cases for comparison:

By contrast, the Defendant relies on:

The main difficulty with “comparator” cases is that the extent of information in the available reports does not allow a clear appreciation of the nature and severity of the injuries leading to the relevant award. Items of damages included in approved settlements are also problematic because of the possibility that the Court’s approval is directed to the overall settlement rather than the discrete items that contribute to the whole. The third matter to be taken into account is the natural tendency of the parties’ lawyers to select those cases which most favour their clients’ case. All three of these difficulties are apparent in the present case. The Defendants’ cases are, to my mind, less serious than the present. In addition, on the information available to me, the award in O’Brien (and, on one interpretation, that in Houltby) appears to be low. By contrast, Witcombe and Crookdake appear to be cases where the cognitive and behavioural elements were worse than in the present case. It is very difficult to pin down the precise level of seriousness of the injuries overall in Gritton but, at least on one reading of the report, the sum attributed to general damages for pain suffering and loss of amenity in the approved settlement looks rather high.

Taking all of these materials together and having regard to the overall picture of the profound effects of this accident on Jubair that I have attempted to describe elsewhere in this judgment, I consider that an appropriate award of general damages in this case is £147,500.

I deal with other heads of loss in Annexe B.

Annexe B sets out my detailed assessment of quantum. The parties are agreed that future care and case management are likely to be dealt with by an order for periodic payments, the details of which have yet to be resolved. For that reason it is not at present necessary to resolve an issue relating to the appropriate multiplier to be applied to future care and I have omitted future care and case management from the calculation of the future loss sub-total, quantum total and the award of damages. My findings can be summarised as follows;

Before finalising my conclusions on quantum, I stand back and look at the award overall assessed on a 100% liability basis in the context of the impact on Jubair’s life that is properly attributable to the accident. The award is substantial but, to my mind, is far from being excessive on the basis of my findings of fact. If anything, my residual concern is that the 100% liability compensation that is the result of the itemised exercise that I have carried out would not in fact put Jubair, so far as an award of damages can, in the position he would have enjoyed had the accident not happened. I am particularly concerned that, even if Jubair manages to function at the level predicted by Banstead, he may require more care than the evidence supported or my judgment allows. However, standing back and viewing the case overall, I consider that the end result of this judgment represents (on a 100% basis) reasonable compensation for the severe and complex injuries that Jubair has suffered and the consequences that are properly attributable to the accident.

CHRONOLOGY of MEDICO-LEGAL APPOINTMENTS AND EXPERTS REPORTS

GENERAL DAMAGES

£147,500: see main judgment at [317].

PAST LOSSES

Damaged Belongings

Gratuitous Care/Support Workers

Case Management.

Rehabilitation Costs

Equipment

Travel Expenses

Loss of Earnings

Court of Protection

Miscellaneous

FUTURE LOSSES

Future Care

Case Management

Future Equipment Needs

Neuropsychological Support

Therapies

Travel/Transport Costs

DIY/Decorating/Gardening

Loss of Earnings

Pension

Court of Protection

Miscellaneous

Interest

CRU

Interim Payments

Periodic Payments