AB v ROYAL Devon & Exeter NHS Foundation Trust

The Claimant was born on 16 January 1966 and is thus now 50 years old. He had a troubled background, on his account being subject to bullying and emotional abuse at home. At eighteen months old he sustained a serious scald injury to his right shoulder, leading to an extensive period of hospitalisation and permanent shoulder weakness. He became involved in drug abuse from about the age of fifteen. He has an extensive criminal record, consisting for the most part of acquisitive offences associated with drug abuse or of offences of possession of drugs. He has received several custodial sentences.

The Claimant has had a difficult personal and work life. In his late teens he worked on fishing boats but following an accident in which he nearly drowned he left this occupation. He subsequently worked only for intermittent periods, in a hospital, in a factory or as a chef. He has obtained some NVQ qualifications in catering and in industrial cleaning whilst in prison. When he was eighteen years of age, his then girlfriend became pregnant and subsequently gave birth to his daughter, “CD”, now his Litigation Friend. The Claimant’s relationship with his girlfriend did not last, he says because of the opposition of her family. He had no contact with his daughter from the time when she was about six years of age, until they resumed contact in the last few years. CD gave evidence before me. She sought her father out via the internet in 2010/11 and slowly began to build a relationship with him. Following phone and internet contact, they met for the first time during 2014 and have exchanged visits since. CD has four children and lives in Cornwall. The Claimant has recently moved to be near her. I return to this aspect of the story in more detail later in this judgment.

In 2009, the Claimant was unemployed and living in a council flat in Exeter. He was under the care of the Community Mental Health Team, having a diagnosis of depression and drug abuse. He was suffering a good deal of pain in his right shoulder and was awaiting a shoulder arthroscopy for a surgical operation on the shoulder. He was on strong prescribed painkillers and his general practitioner was concerned about him abusing those prescribed drugs. He had been released from a period of imprisonment shortly beforehand and was being prescribed heroin substitutes.

On 20 June 2009, the Claimant, then aged 43, was admitted to the Royal Devon and Exeter Hospital, Exeter as an emergency surgical admission, suffering from epigastric pain. A condition called cholecystitis was suspected, but in fact the cause of the Claimant’s symptoms was a developing spinal abscess. It is agreed that various signs, including loss of motor power in the legs, were missed or not acted upon in time. It was this failure which led to litigation. As the liability issue crystallised between the parties, there was a factual dispute as to whether it was likely that a MRI scan would or could have been performed in time to permit successful surgery. Against this background, liability was compromised on the basis that the Claimant would receive:

“… 60 per cent of such damages as are assessed by the court … if not agreed. Such damages to be assessed on the basis that but for the Defendant’s admitted breach of duty, the Claimant would have been neurologically intact after treatment for his spinal abscess.”

The compromise on liability was enshrined in a Court Order of 30 June 2014. At the time of the settlement and of that order, it had not been suggested to the Defendant that the Claimant lacked capacity to litigate, or to manage his financial affairs, or that he was or ought to be a protected party. However, it is clear that the Claimant’s legal team became concerned as to whether he was capable of managing his own affairs. Reports were obtained from a Dr Denman, Consultant Psychiatrist, dated 14 April 2015 and Dr Luis van Graan, Consultant Neuropsychologist, dated 13 July 2015. Application was made to the Court on 9 September 2015 and on that date Master Roberts, being satisfied that the Claimant was a protected party, appointed the Litigation Friend. The Order and the supporting expert reports were then served on the Defendant. On 25 September 2015, Master Roberts retrospectively approved the steps taken to date in the litigation, including the liability settlement.

The issue of the Claimant’s capacity is potentially significant in the assessment of damages. In fact, there is a good deal of convergence on the facts of the matter, as I shall set out later in this judgment. However, the Defendants make several key points to be considered. They say firstly that the loss of capacity, if and when demonstrated, cannot be attributed to the medical failure, and on that there is agreement. However, the Defendants go on to say that any lack of capacity which is demonstrated, past or future, derives from the Claimant’s abuse of illegal drugs. Hence any consequential losses are irrecoverable due to the operation of the legal policy expressed in the Latin maxim ex turpi causa non oritur actio. I address this below.

The Claimant has received a series of interim payments as follows:

The Claimant sustained an injury to the spinal cord which has left him paraplegic. There is a degree of disagreement between the consultant experts in spinal injuries as to the detail of his lesion. Mr Jamil for the Claimant found on sensory testing that the Claimant’s sensory level was at Thoracic 8 [“T8”], although his epidural abscess was confirmed on MRI scan to be at T4. Mr Jamil’s view is that it is not uncommon for spinal cord injury victims to have preservation of, or recovery of, sensation for several segments below the actual site of spinal cord damage. Therefore Mr Jamil concludes that it is probable the Claimant’s level of injury is at T4. Mr Thumbikat for the Defendants concludes the Claimant has sustained a lesion at T7: using the agreed ASIA classification he is to be described as a T7 ASIA B paraplegic. Mr Thumbikat found the Claimant to have normal sensory awareness at T7 on the left and T8 on the right. In his view, the proper approach is to conclude that, where no specific muscle exists for testing at a particular level (as is agreed to be the case here), if the sensation is normal then the motor level is also considered as normal. Therefore the Claimant is properly classified as a T7 paraplegic. Mr Jamil responds that Mr Thumbikat’s approach only holds good if both pinprick and light touch responses were completely normal between T4 and T7. Until then Mr Jamil considers that the neurological level should correspond to the lesion revealed on imaging.

In giving his evidence, Mr Jamil emphasised that in his view this issue is not academic, since a lesion at T6 and above renders a paralysed person prone to the risk of other consequences as a result of “autonomic dysreflexia”, a condition of sudden rise in blood pressure which can potentially cause brain haemorrhage. In reply, in the course of his evidence Mr Thumbikat emphasised his view that it was the neurological level which was important. Here the neurological level is at T7 and it would be right to expect the vertebral lesion to be at about the T4 or T5 level since anatomically this is appropriate. Mr Thumbikat also pointed out that the treating clinicians concluded that the overall neurological level was T7. On this issue I conclude in favour of Mr Thumbikat, bearing in mind his analytical approach to the question and the view of the treating clinicians. It therefore seems unlikely to me that the Claimant will be at risk of automatic dysreflexia.

It is agreed between the experts that the Claimant has a small but lifelong risk of suffering syringomyelia, that is to say a development of a syrinx or cavity in the spinal cord. If a syrinx were to develop, it could bring important and sometimes serious additional neurological compromise. In the circumstances the Claimant seeks provisional damages in the case in the light of that risk, a claim in essence not resisted by the Defendants.

The functional effects of his injury are very considerable. He has pinprick sensation down to the sensory level at T7, below which there is reduced perception of sharp sensation down to the anal verge. There is complete paralysis of the lower limbs and paralysis of voluntary anal contraction. The Claimant suffers from contractures of the calf muscles and shortening of the Achilles tendon on each side. He is doubly incontinent. His bladder is managed with a suprapubic catheter, which is changed every five weeks or so by a district nurse. The catheter is connected to a night bag. There have been problems with catheter blockages over time. Bowel management is carried out by a nurse using suppositories, following which the Claimant is normally hoisted over a toilet seat for bowel emptying. There have been a number of bowel “accidents”.

The Claimant has severely impaired sexual function. With concentration and effort, and the help of Viagra, he can achieve a degree of reflex erection and ejaculation.

There is an important interaction between the Claimant’s spinal lesion and his preexisting injury to the right shoulder. As I have indicated, this injury derives from a scald, or burn injury, at the age of eighteen months. The Claimant has developed contracture formation within the skin, which has affected his right shoulder function since childhood. He has never been able to move the shoulder as fully or freely as normal. He was unable to elevate the right arm above his head when a teenager, and he began to get pain in his right shoulder during his early twenties. The pain was located in the region of the acromio-clavicular joint [“the AC joint”]. If the Claimant ever knocked his right shoulder he would experience pain and sometimes swelling. Progressively the shoulder became more troublesome, and for that reason, at the time of his injury, he was on the waiting list for an arthroscopic subacromial decompression of the right shoulder. He underwent such procedure at Odstock Hospital following his spinal lesion. Curiously, no records of the operation appear to have been found, but the orthopaedic surgical experts for each side agree there are scars consistent with the surgery on his right shoulder, and it is clear that it took place. The Claimant confirms the surgery, states that it took many months for him to recover his ability to use his shoulder but that thereafter the operation reduced his pain by about 50 per cent.

However, both before and after the surgical intervention, the compromised right shoulder has made transfers more problematic for this man suffering from relatively high paraplegia. He has had considerable pain in the right shoulder as a result of the heavier use involved in transfers. For a long period following his spinal injury he had access only to a manual wheelchair. He had temporary access to an electric wheelchair following the shoulder surgery. Even after the discharge from Odstock Hospital, self-propulsion of a manual wheelchair has brought pain. His arms are relatively short as compared to his trunk height, something which has been corrected by the use of lifting blocks in both hands. He has used a sliding board for transfers when not hoisted. He has attempted to limit the number of transfers in a day to avoid shoulder provocation.

His mobility was improved once he obtained an electric wheelchair of his own in February 2012 and on his account since then he has not used a manual wheelchair, except when going out in a car. He has attempted to continue exercise to strengthen his upper body, but this has caused him right shoulder pain and these efforts have fallen off somewhat. He has had only limited physiotherapy input into his management since his discharge from Odstock Hospital.

The orthopaedic surgical experts for both sides are agreed that the Claimant will come to further surgery on his right shoulder. Mr Handley for the Claimant considers that the Claimant will come to at least one further surgical intervention and perhaps three, namely a revision of the initial decompression, possibly a rotator cuff repair, and thirdly a surgical shoulder joint replacement. Mr Handley would not himself tend to perform the rotator cuff repair and under cross-examination agreed that the Claimant might have required a revision of the original surgery. However, he was clear in his view that but for his medical accident, the Claimant would not have required surgical replacement of the joint. Mr Constant for the Defendant considered the Claimant is likely to come to all three further episodes of surgery. He projected forward 20 years for the final operation. He, too, felt that the revision of the original surgery might have come about even in the absence of the spinal injury. On balance, therefore, I

Another consequence of the Claimant’s spinal injury is that he has had persisting problems with pressure sores. These may have related in part to his poor condition of life during much of the intervening period, and in part also to the fact that at one stage he gained a great deal of weight, reaching 17st in weight at a height of 5’ 8”. At the date of the trial he had lost this weight again. By February 2015, he was back to weighing 10st 4lbs.

One of the most important consequences of the injury for the Claimant is that he has suffered from frequent extremely painful spasms in his legs. The consultants in pain medicine are agreed that these spasms are rated “severe”. They occur when straightening the legs, transferring to or from the wheelchair and when the wheelchair goes over uneven ground. They occur on multiple times each day, lasting for brief periods of time. They are a direct consequence of the spinal cord injury. The experts agree that the prognosis for the painful leg spasms is of a stable long-term condition, unlikely to improve or worsen of its own accord in the foreseeable future.

The experts agree that all appropriate medications have already been tried for treatment of the leg pain and the shoulder pain. The Claimant has been prescribed extensive drug treatment in attempt to deal with the pain and spasms. They are agreed that detoxification from opioids would be the ideal outcome, but that it is a “counsel of perfection”. Dr Munglani for the Claimant believes that the total morphine dose should be reduced below 100gm per day for reasons of safety, a proposition with which Dr Dolin for the Defendant is in agreement: Dr Dolin would prefer that the opioids should be removed entirely. A drug called Baclofen has been prescribed through oral delivery, in an attempt to prevent the spasms, but this has had little or no effect. The expert pain consultants are agreed that intrathecal delivery by pump of Baclofen is not appropriate in this case for a number of reasons, of which the most important is the risk of infection, given the Claimant’s history of pressure sores, many of which have been open lesions for sustained periods of time.

The Claimant also suffers from unrelated low back pain and has a degree of hip osteoarthritis. Neither of these are disabling, but they do form part of the complex picture and at least to some degree interrelate with the effects of the spinal injury.

Another element was added to the Claimant’s complex situation in 2012 when he was diagnosed as suffering from Type II Diabetes. Despite some tentative suggestion of connection to his spinal lesion, I find it probable that this development did not arise from the index event. Both of AB’s parents contracted this condition, in respect of which there is a strong familial tendency. However, it is a relevant factor in considering the care of the Claimant and his life expectancy.

I have summarised the main points of the physical impact of the Claimant’s spinal lesion. This accident also brought psychological consequences for the Claimant. However, before considering those, it is appropriate to set the context. The interlocking factors of this Claimant’s history, his pre-existing difficulties including drug abuse, and the psychological effect of his injury make the task of predicting his future particularly complex.

AB gave me the clear impression that he was attempting to be frank in his evidence. He acknowledged the chaos and criminality that had been part of his life. He was taken to the detail of his long criminal record and made no quibble about it. As he himself said, his criminal offending and his drug abuse went together.

It is clear that he was offending consistently from his teens. Apart from a period in early adult life when he was in a stable relationship with the lady who became his wife, he agrees he had no sustained period of employment or indeed stability. He has consistently used cannabis on a regular basis, injected amphetamines for a very long period, on his account until 6½ years ago. Since then he has also injected “legal highs”. He has not always been accurate about some of the detail. In his written statement he claims to have been “clean of heroin since 2011” but in oral evidence acknowledged that he had had heroin since then. However he was clear that he has never injected heroin, as opposed to smoking the drug. He acknowledged also that he has in recent times smoked crack cocaine.

Taken together, this amounts to long-term, sustained drug abuse. It is also clear that matters became, if anything, worse during 2014 and into 2015, when AB was living in his flat in Exeter and, following the significant interim payments, had access to funds. It is clear on his own account that the Exeter flat became a chaotic environment, a place being used for widespread drug abuse by others. On AB’s account he did not give money to others but if people were ill “he would try and help them out and get them something, and they knew this and that’s what they used to do”. He also made it clear that by the time this situation had developed, people were repeatedly burgling him. He said that happened four times, which was the reason he took to having weapons to protect himself.

This history provides a bleak backdrop for the prospect of drug-free life in the future. AB was adamant that he wished to remain clean, as he was firm had been the case since his rehabilitation. As all have acknowledged, this is a very short time. AB was clear that his motivation was the relationship with his daughter and grandchildren. I turn to her evidence shortly, but I should record I accept his intention is genuine; he has a real desire to make something of this relationship.

My impression of AB chimes very much with the overall thrust of the expert evidence. There is an impulsive side to his character, demonstrated once or twice in his reactions to the evidence and the proceedings. It is clear that he intends to go on smoking cannabis and when he set out his intention to remain clear of illegal drugs, he actually meant “other than cannabis”. Even without the assistance of expert evidence, my conclusion would have been that AB is unlikely to avoid future drug abuse entirely.

The Claimant was discharged from Salisbury Spinal Unit in March 2010 and then spent six weeks in a nursing home. He then moved to a bungalow provided by his local authority. Following that, he moved to a local authority flat in Barley House, in Exeter. The block of flats was positioned at a reasonable distance from the centre of town at the top of a hill. The flat was on the ground floor with one bedroom, a wet

It is agreed that the flat in Barley House was not suitable for the Claimant’s needs. In addition, the condition of the flat rapidly, and seriously, degenerated.

This picture is reinforced by the helpful and frank evidence of Michael Chevalier, who acted as the Claimant’s case manager from the late summer of 2014. Mr Chevalier was an impressive witness. He described how the Claimant, at that stage, had a social services package involving daily visits, assisting him to get up, be washed, dressed and spend time in his standing frame. Mr Chevalier also described how at that stage district nurses were attending to the pressure sores on his hip and heel, which were already of longstanding. Further, there was a carer coming in in the evenings to help the Claimant get ready for bed and a special support worker to help him with shopping and with administration. In his statement of January 2015, Mr Chevalier described the home in the following terms:

“Roy has a very chaotic home situation and it remains so. He is surrounded by people who look on him as a means of support. He complains frequently of having things and money stolen from him. He is very poor at managing his finances and he makes poor and impulsive judgements about purchases. He bought a car last year and gave it to his daughter which has had to be scrapped, according to her, because it was unroadworthy and too expensive to repair. He is cavalier with correspondence, often throwing mail into the corner of the room unopened. As a result, he has run up debts with council tax, water and other accounts. He can be forgetful and will often double book appointments or forget to notify the care agency when he is going away. I have had a number of fruitless visits when he has failed to be there or to answer the door.”

Mr Chevalier notes that conditions at this flat became so bad that local authority care workers were instructed only to go to the premises two at a time. Mr Chevalier emphasises that the Claimant was frightened of his own situation, and for a considerable period before he left Exeter was saying to Mr Chevalier, and to Mr Pearson, that he had to get out, and wished to go to Cornwall to be near his daughter.

In September 2015, the Claimant’s care package from his local authority was withdrawn, apparently at the instigation of a locum social worker, with 48 hours notice and with no discussion with the Claimant or notification to Mr Chevalier, his case manager. Mr Chevalier took a number of steps. He obtained a reassessment by a full-time social worker which demonstrated clear and eligible needs. However, the previous provider of care declined to resume service and no other provider was found. The Claimant then had to rely on assistance provided by friends and funded by himself. Mr Chevalier was party to this agreement and states that an aspect of the arrangement was to keep the premises clean and in some sort of order. This never happened, and the premises became even more unhygienic and chaotic. At around this period, the Claimant admitted to Mr Chevalier that he remained a regular drug user, consuming crack cocaine. He was arrested and prosecuted for an attempted supply of a small quantity of crack cocaine to an undercover police officer. His physical health was highly precarious and nurses were no longer prepared to attend his home to deal with pressure sores or blocked catheters.

By the autumn of 2015, Mr Chevalier was extremely anxious to arrange for the Claimant to move away from the flat in Exeter. For quite a time, the Claimant had wished to move to Cornwall but neither he nor his daughter had found any suitable premises. Mr Chevalier engaged a specialist firm to look for accommodation. In the meantime he set about attempting to find drug rehabilitation units for the Claimant that would be able to manage his physical needs. In October 2015, the Claimant moved to Broadway Lodge in Weston-super-Mare. The plan was for three months’ rehabilitation, after a two week initial trial, to see if Broadway Lodge could manage the physical problems. However, this admission broke down. The Claimant injected a “legal high” on admission. He had a large and serious pressure sore on his left heel, with smaller lesions on the right heel and left hip. He sustained a urinary tract infection on 21 October and was sent to hospital, where sepsis was diagnosed. He came back to Broadway Lodge three days later, but on 29 October Broadway Lodge informed the Claimant that they felt unable to manage his complex medical needs. The Claimant became very angry and, despite advice to stay at Broadway Lodge, given both by the institution themselves and by Mr Chevalier, the Claimant left on the same day. He booked into a hotel in Bridgewater.

Mr Chevalier was then faced with the task of trying to maintain the Claimant in hotels in the Somerset area, rather than permit him to return to Exeter. A chaotic period followed as the Claimant moved through five separate hotels. Mr Chevalier was unable to get any statutory input for the Claimant, since he was not registered with a local GP. He had to be taken to the Accident and Emergency Department in Taunton for dressing of pressure sores. Every effort to get the Claimant admitted to rehabilitation units failed until Mr Chevalier contacted the Royal Buckinghamshire Hospital in Aylesbury, a private specialist provider. Despite the high cost, Mr Chevalier concluded that this was the only practical answer, providing the expertise and experience to deal with the pressure sores and other physical needs, and allowing the Claimant to resume an attempt at rehabilitation. At this stage, Mr Chevalier had concluded that an alternative case manager was necessary, particularly since he was remote from both Aylesbury and Cornwall. An alternative case manager, Ms Catrin King was appointed and an alternative drug rehabilitation placement was found at Gladstones Clinic in the Cotswolds. The Claimant moved there in December 2015.

Whilst the Claimant was resident at the Gladstones Clinic, a rented property was finally found in Illogan, in Cornwall. A tenancy agreement for a year was signed in relation to this house in January 2016. On discharge from the Gladstones Clinic in mid January 2016, the Claimant moved to Illogan. A further alternative case manager, based in Cornwall, was found but it proved impossible for her to build a relationship with the Claimant. Accordingly Ms King has resumed acting as the Claimant’s case manager, despite the distance.

It is the Claimant’s evidence, unchallenged at trial, that his admission to the Gladstones Clinic was successful, in that he has been “clean” in relation to hard drugs during and after that admission. The Claimant has now settled into the Illogan house with a live-in carer.

The Claimant’s misuse of drugs is important both in considering the psychological impact of his spinal lesion and when considering his historic and future capacity to manage his own affairs. As I set out below, the Claimant is firm in asserting that he is clean of hard drugs and intends to remain so. The evidence of his daughter is that if he does revert to misusing hard drugs she will not wish to carry on with any close relationship with the Claimant, and nor would she wish that he should have contact with her children. I accept this represents a strong incentive to the Claimant and I accept that he understands that.

I have considered carefully the evidence of the Claimant, his daughter, the psychiatrists and the neuropsychologists. It is devoutly to be hoped that the Claimant’s good intentions, the incentive and opportunity offered by his family and his move to Cornwall will help him to succeed in staying clear of serious drug addiction in the future. There is a real chance that he will do so. The fact that he will be living in better surroundings and with live-in carers will be a help to his achieving that end. It is likely also to mitigate the frequency and degree of drug abuse even if he does relapse. However, I find on the evidence that it is probable he will revert and abuse hard drugs once more. In my judgment, too little time has passed since he achieved abstinence to conclude otherwise. I sincerely hope that time and the Claimant will prove me wrong.

The Claimant was examined during mid to late 2015 by neuropsychologists on behalf of both sides. In June 2015, he was seen by Dr. Louis van Graan instructed on his behalf. There is agreement between the neuropsychologists that during both examinations the Claimant was trying his very best to complete all tests. Dr van Graan thought that the Claimants pre-morbid ability would have been in the average range but verbal ability slightly lower than non verbal ability. He found there was a marked deterioration in aspects of verbal intelligence, and on a measure of verbal abstraction his performance was significantly impaired with deterioration from the average range to that in the “borderline-impaired range”. Spatial reasoning and construction was average. His span of processing, ability to focus, sustain attention and exert mental control were tested. His information span was blunted and he evidenced difficulty in sustaining attention and maintaining mental control. Delayed recall of visuo-spatial information was blunted and verbal learning and recall was defective. He had problems with memory of everyday matters. Performance on measures of verbal learning was defective. Performance on a measure of verbal abstraction was abnormal and he demonstrated a score on a specific questionnaire which indicated the presence of marked cognitive impairment relating to executive function.

Dr van Graan found that the Claimant scored for severe depression. He concluded that the Claimant was able to weigh information and reason appropriately “but only in the context of a limited span of information”. In his view the Claimant would have the capacity to litigate “in very simple cases”. He concluded that a case as complex

In October 2015, the Claimant was examined and tested by Dr J L Welch on behalf of the Defendants. Dr Welch saw the Claimant at his Exeter flat and in the course of his evidence told the court that, such was the condition of the flat, Dr Welch declined to sit down anywhere and conducted his whole examination and testing of the Claimant whilst standing up:

“I stood casually and he worked on the kitchen bench, which we cleaned for the purpose.”

Dr Welch emphasised that in approaching the tests the Claimant was doing his best and indeed was himself resentful of the idea that he might not have capacity to make decisions.

Dr Welch took a careful history from the Claimant, in the course of which he gave a graphic description of the pain in his legs. He had pain which he graded as:

“…level 6 on the 10 point scale, which is intrusive and present for up to 70 per cent of the day. Pain wakes him at night. Occasionally he will have pain which is of the intensity of 8 or 9 and normally this is associated with spasms in both legs. He told me that he felt he could deal with the pain in his right shoulder if that was all he had to contend with, but the preexisting pain in his right shoulder and the newly acquired pains in his legs make the overall level of pain intolerable and necessitates strong medication …”

Dr Welch accepted the description of pain and its psychological impact, noting that the Claimant had been depressed to the extent where he had contemplated suicide which “is not unusual in such cases”. The Claimant also told Dr Welch about the cognitive problems he had sustained since suffering his injuries, which might be due in some measure to the medication he took to control pain, particularly Gabapentin. His memory was worse, he tended to forget appointments and forget things he had to do. “He tells me that new learning would be out of the question”.

When Dr Welch performed comprehensive neuropsychological assessment he too found that the estimated pre-morbid abilities were in the normal range with an estimated full scale IQ of 92. Dr Welch concluded that the current intellectual functioning was indicated by a full scale IQ score of 83, with considerable variation amongst the components. Verbal comprehension was functioning at the 37^th percentile, perceptual reasoning equivalent to functioning at the 30^th percentile, the working memory score equivalent to functioning at the 13^th percentile and processing speed equivalent to functioning at the 3^rd percentile. Dr Welch concluded that the Claimant’s ability in terms of reasoning, and in particular verbal reasoning, was

“more than adequate … to reason effectively and to weigh information”. The problems with processing speed were due to distractability and difficulty in attending to the task in hand, some of which was related to mental fatigue and some:

“…a product of his long-term heroin abuse which gives rise to lasting difficulties with attention and mental speed, even when active drug taking has ceased”.

Memory abilities were tested and there were significant problems with recall:

“Overall the assessment of memory would suggest impoverished verbal and non verbal immediate recall, good delayed recall of relatively small amounts of information and slow learning. These scores are not commensurate with the estimates of pre-morbid function.”

Dr Welch’s assessment of the Claimant was that his test scores suggested:

“Moderate depression, moderate anxiety and mild stress symptoms. He indicated specifically that he did not experience any positive feelings at all, he found it difficult to work up initiative, he tended to over-react to situations and was worried about situations in which he might panic and make a fool of himself. Lack of enthusiasm and self-worth were also evident throughout the profile. This confirms the level of psychological disturbance that [AB] expressed in interview and underscores the importance of psychological therapy as part of his rehabilitation. I understand that the current rehabilitation programme is geared towards his drug taking habits but I expect that there are also psychological issues associated with his paralysis which need further exploration and therapy input.”

Dr Welch explored matters relating to mental capacity with the Claimant. He noted that the Claimant understood the purpose of litigation, understood the roles of his solicitor and barrister and understood why a Litigation Friend had been appointed, even though he did not agree with the need for such an appointment. In relation to management of money, Dr Welch recorded the following:

“With regard to management of money [AB] was able to describe his weekly and monthly outgoings and sources of income. He agreed that he was not particularly vigilant with regard to bill paying and thought that the role of a buddy/support worker would be important in this regard as he admitted that he needed prompting and reminding. He also gave some explanation as to what he might do with a large sum of money and this involved taking advice on investment, placing money in Trust for his grandchildren and daughter and specifically he has a notion of buying a bus and attending festivals. This is his idea of a commercial venture which he would help run and fund, making and serving food stuffs from a converted bus. When reminded of his limitations with regard to mobility he showed evidence of having given this some thought and realising that adaptation and input from able bodied collaborators would be necessary for the venture to succeed.”

In his own conclusions on capacity, Dr Welch acknowledged that the history of drug taking in the Claimant’s case:

“…could have had a profound effect on understanding of litigation process and management of money. However whilst there is evidence of problems in relation to processing speed and to tension in particular … in my opinion his problems are not sufficiently severe to suggest that he fails to demonstrate capacity.”

Dr Welch went on to suggest that his situation with relation to capacity may change over time. Dr Welch felt that the steps to be taken in relation to the Claimant meant that “he could be expected to resume total abstinence from harmful drugs” and in such case would retain capacity.

When the neuropsychological experts discussed the case they agreed that the Claimant suffers from “a mild to moderate neurocognitive disorder”. Dr van Graan believed that this condition resulted from a history of head trauma and substance abuse disorder, whereas Dr Welch believed it to be related only to the substance abuse disorder. The experts agreed that the Claimant “suffers organic brain damage affecting cognitive function”. The cognitive impairment included “specifically marked decrements in aspects of memory and attention/cognitive control”. The neuropsychologists agreed that “the Claimant lacks capacity to manage financial affairs when he’s dependent on drugs”. They agreed the Claimant “is likely to have capacity to manage financial affairs when he is free from drug dependency”. They agreed that he could retain capacity to manage his financial affairs were he to be successfully rehabilitated from substance misuse, and were he to be provided with assistance and supervision.

A degree of confusion emerged in the course of the oral evidence as to whether the neuropsychologists had in fact agreed on the impact of cannabis consumption by the Claimant. It was clear that Dr Welch was principally focussing on “the harder drugs” which he felt were more important in terms of the long term cognitive impairments. However, Dr Welch did agree that frequent abuse of cannabis could significantly acutely affect capacity, meaning that capacity would be affected whilst the Claimant was under the influence of the drug. Dr van Graan felt that cannabis abuse was important for its effects on capacity. He also reaffirmed that if the Claimant were provided with a high level of support, that would improve his prospects of abstinence but it would still not move the estimate to probability.

Dr Francesca Denman was the consultant psychiatrist called on behalf of the Claimant. She first saw AB in March 2015 and reported in April. Having reviewed the Claimant’s history, including his misuse of drugs, she concluded that the Claimant suffers from a substance abuse disorder (classified as ICD-10 F19.20) and an underlying personality disorder “best classified as emotionally unstable personality disorder (ICD-10 F60.3)”. She also felt that he was likely to be suffering from a mild cognitive impairment (ICD-10 F06.8) and it was she who suggested he should undergo neuropsychological testing. She concluded that he was certainly depressed and lonely and had significant levels of pain derived from his spinal injury. Moreover the pain-relieving medication which he had been prescribed affected his cognitive function and his mood. In that report Dr Denman concluded that AB had the capacity to understand and retain information, but was likely to have impaired capacity in his ability to weigh decisions. His decision-making was “often impulsive and … disorganised”. He had “no real sense of the likely span of his future needs, the size of his financial settlement and the need to husband resources”. Dr Denman at that stage concluded that the Claimant was unable to make relevant decisions for himself in relation to the litigation within the terms of Section 2(1) of the Mental Capacity Act 2005. He did:

“…not appreciate the nature of the agreements that had been negotiated on his behalf in that he has no realistic appreciation of the different elements of his financial settlement, for example, vastly overweighting the value of the settlement in relation to pain and suffering as opposed to provision for future care and support. Overall therefore I think that [AB] is not able to weigh the consequences of a range of potential decisions in relation to the litigation…” His capacity was:

“so marginal, even quite small changes in his circumstances could improve or deteriorate his decision-making capabilities. There is undoubtedly some fixed level of difficulty but it is not so severe as to mean that whatever else happened to [AB] his capacity would remain fatally impaired.”

Essentially, putting the matter in a simplified way, Dr Denman felt that if the Claimant could become and remain totally abstinent, he would likely regain and/or retain capacity, at least for daily living.

Dr Denman’s second report dates from October 2015 when she had available the neuropsychological report from Dr van Graan and a range of updated information. Dr Denman concluded that the neurocognitive testing was consistent with her view that the Claimant:

“…lacks capacity to manage his financial affairs in all but the most rudimentary way and that he lacks capacity to litigate in complex matters. [His] cognitive deficits are likely to be due to multiple factors. To the extent that they are due to organic brain damage, [AB]’s deficits will remain static over time. To the extent that [AB]’s cognitive deficits are due to [emotional unstable personality disorder] they will fluctuate over short time periods with a tendency to reduce markedly at times of emotional stress. Finally that proportion of [AB]’s deficits that are due to drug intoxication and its aftermath may respond to abstinence.”

Psychiatric evidence on behalf of the Defendant was given by Dr Jonathan Haynes. He reported on 17 November 2015. Dr Haynes conducted a very careful review of the evidence then available, which included the evidence from the case manager Mr Chevalier. By then the Claimant was on the brink of the first admission for drug rehabilitation and the plans for a move to Cornwall had advanced from earlier in the year. Dr Haynes reviewed the extensive medical records available to him. His opinion begins by stating that:

“[AB] has a complex history of mental disorder, starting with childhood bullying and emotional abuse from parents, resulting in longstanding low self-esteem and impulsivity together with mood lability. Medical records indicate the presence of head injuries, though I did not establish information that indicated that these were of great severity. There has been long-standing drug use, since the age of 18 … which causes neuropsychological impairment through damage to the frontal lobes of the brain affecting executive function and increasing impulsivity.”

Dr Haynes diagnosed the Claimant as meeting the criteria for poly-drug dependence (ICD-10 F14.2, F15.2, F11.2). Dr Haynes did not consider that the Claimant met the full diagnostic criteria for emotionally unstable personality disorder but did agree that he exhibited traits of the disorder. Dr Haynes considered the Claimant may suffer from the neuropsychological effects:

“…of chronic amphetamine misuse on his frontal lobes, affecting executive function, and resulting in poor decisionmaking and impulsivity”.

However, Dr Haynes went on to conclude that he considered the Claimant did have:

“…capacity to litigate and capacity to manage his financial affairs with appropriate advice which he is able to seek”.

Dr Haynes noted that this was a different conclusion from that of Dr Denman but that it was likely the period of abstinence from drugs had resulted in the change. He concluded that the prospects of AB remaining abstinent were not good and:

“… for this reason I consider it likely that capacity to litigate and manage his finances will not be on the balance of probabilities sustained.”

When the psychiatric experts met they agreed that, while the Claimant is regularly using [illegal] drugs, he lacks the capacity to litigate. Dr Denman had not examined the Claimant whilst free of drugs but did not see reason to oppose the opinion of Dr Haynes that the Claimant has capacity to litigate when abstinent. Again, the psychiatrists agreed that when the Claimant was regularly using drugs he lacked capacity to manage his finances.

In giving evidence, essentially the expert psychiatrists restated these positions. Dr Denman restated her view that the Claimant would benefit from cognitive behaviour therapy to deal with the psychological impact of his pain. She emphasised the difficulty for someone like the Claimant in maintaining abstinence. For someone fulfilling the diagnostic definition of dependent poly substance abuser, abstinence was “extremely difficult and … probably not volitional”. She emphasised her view that the difficulty with capacity was the Claimant’s inability to weigh information and make a coherent decision rather than act impulsively. She was of the view that 2½ months abstinence was not long enough to predict future abstinence. He still fell to be diagnosed as a dependent poly substance abuser, although he could be described as being in remission. She agreed with Dr Haynes that he did currently have capacity for managing his affairs and conducting litigation, but I formed the view that Dr Denman’s agreement on this point was tentative.

Dr Haynes, in his evidence, confirmed that he regarded dependence or substance misuse as an illness within the ICD-10 definition. He stated:

“I consider that substance misuse has an intricate set of causative factors where there is a degree of choice of decisionmaking, but it is complicated by personality factors, by previous experiences and by chemical changes in the brain that might occur because of chronic substance misuse.”

Dr Haynes accepted that the difference between himself and Dr Denman as to the Claimant’s underlying personality disorder was not a matter of real substance: he accepted that the Claimant has traits of personality disorder but was cautious about a diagnosis of the disorder itself. As to capacity, Dr Haynes’s view was:

“There is a high probability that he will give in to his impulses and start using drugs again. When he starts to use drugs his capacity will deteriorate and become lost as his drug use escalates.”

It is clear that the Claimant has longstanding psychological problems, predating his spinal injury. I accept that these derive from a number of factors: his personality, his difficult youth and his historic drug abuse being the most important. I accept from Dr Denman there is likely to be a component related to mild head injury. I accept that he has a personality disorder, rather than merely traits pointing in that direction. He is also properly to be categorised as suffering from polydrug dependency, currently in remission, predating the medical accident.

In that complex context, the Claimant has suffered serious psychological consequences from his injury. These have been significant, and must not be ignored or treated as trivial because of his pre-existing difficulties. I am confident that, although his life was already chaotic, problematic and unconventional, the disability and the pain have had a major impact. The best “before and after” picture came from the Claimant’s friend, David Pearson. He was an impressive witness, who underplayed none of the Claimant’s pre-existing problems, but emphasised how big has been the impact of his injuries.

An important ingredient here is the extent and duration of the pain felt by the Claimant, particularly from his leg spasms. It is unsurprising that he has suffered depression, and has on occasion had suicidal thoughts. These are matters to be reflected in his award for pain, suffering and loss of amenity. They are also a proper basis for future cognitive behavioural therapy.

I turn to the question of capacity, beginning with relevant provisions of the Mental Capacity Act 2005, which read:

“1 The principles

(1)

The following principles apply for the purposes of this Act.

(2)

A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

…

2 People who lack capacity

(1)

For the purposes of this Act, a person lacks capacity in relation to a matter 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.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to—

(a)

a person’s age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.”

As the Supreme Court emphasised in Dunhill v Burgin (Nos 1 and 2) [2014] 1WLR 933:

“… even before the Mental Capacity Act 2005 came into force, capacity to manage and administer all one’s property and affairs was to be judged in relation to the activity in question and not globally.” (see the Headnote)

The psychiatric experts are agreed, in simple terms, that the Claimant at the time of trial, and because he is abstinent of “hard” drugs, has the capacity to conduct litigation

I should record my clear view that, when the Order of Master Roberts of 9 September 2015 was made, the Claimant was under a disability. The evidence of Mr Chevalier underscores that. Indeed the evidence of serious drug abuse by the Claimant, at least until he began his rehabilitation, means that the better view is a lack of capacity must be taken to have continued until after that treatment (or attempted treatment) commenced.

It was in my view perfectly proper for those representing the Claimant to continue to operate within the confines of Master Roberts’ Order. The law must accommodate practicalities. The psychiatric experts’ note of discussion is dated 16 January 2016, and the trial began on Tuesday, 2 February. Until 16 January the psychiatric evidence was not finally clarified. In my view there was no obligation on the Claimant’s legal team, in the unusual circumstances of this case, to make an immediate application to the Court to revoke the Order. It is also clear that throughout the trial, the Claimant has been fully consulted as to the conduct of the case and in that way has been largely treated as a client with capacity.

The problem of capacity for the future is difficult. Even assuming that the Claimant remains abstinent of “hard” drugs, how far will his capacity extend? I accept that he has capacity for the purpose of the trial. But the “material time” next to be contemplated will be the moment when a very large sum of money is paid over, with the intention that the money will so far as possible satisfy complex needs over a long period of time. Control over such an award is a more complicated matter even than giving instructions and evidence in the course of this hearing. Here I bear in mind the views of Dr van Graan as to the limits of the Claimant’s capacity. I have come to the conclusion that, even if he does not revert to the use of crack cocaine, “legal highs”, amphetamines or heroin, the Claimant will probably not achieve and sustain the capacity to make the relevant decisions about the organisation and disposition of his life, and about spending which will arise following the award in this case.

This is particularly so because of the compromise reached in this case. The level of award will be assessed without reference to that compromise, but for this purpose I cannot ignore the fact that management of the eventual award will involve particularly difficult choices, given that the Claimant will have at his disposal only 60 per cent of the full quantum of damages, and indeed rather less than that, given the interim payments already made. I am convinced they are beyond the Claimant’s current capacity, and will be so even if he remains free of serious drug abuse.

It is common ground that, if the Claimant were to resume use of some or all of the other drugs mentioned, he would lose the degree of capacity he now has.

There is no suggestion that the Claimant’s incapacity at the next “material time” to be contemplated derives from his spinal cord injury. It does not. It derives from a complex conjunction of factors: his personality disorder, his impulsive personality, a component relating to mild head injury and the effects of his historic drug abuse, however medically categorised. There is no basis on which to quantify the contributions of those components. Whilst I have found it is probable the Claimant will revert to abuse of hard drugs, I cannot say when, or whether such relapse will be partial and remitting, or total and long lasting.

The complex implementation of the large award, in respect of which I find the Claimant will be under a disability, will take time. It is to be anticipated that it may take around a year to obtain and refit a property for the Claimant’s long-term use, to institute a care regime which represents the best compromise between the Claimant’s needs and the available funds, and to reach and implement similar decisions on the purchase of equipment and transport. Doing the best I can, I therefore conclude that, in respect of the period until these initial decisions and arrangements are made, the Claimant will be under a disability irrespective of current drug abuse. I estimate those arrangements will take about one year to complete, following the payment to the Claimant of the substantive award following on after this judgment.

After that time, it seems to me probable that, absent reversion to abuse of illegal drugs, and even assuming moderate (illegal) use of cannabis, the decisions facing the Claimant are likely to be less complex. They will address staff changes within an established regime, repair and replacement of equipment, current expenditure and similar issues. As I address below, this is clearly a case for maximum use of periodical payments, and so once the initial decisions are taken, such later decisions will predominantly involve expenditure of income not capital. Doing the best I can, I conclude that at that material time the Claimant will probably have capacity, if he does not revert to significant abuse of drugs. The probability is therefore, that any lack of capacity after one year following satisfaction of this award will derive from reversion to illegal drug abuse.

How do those conclusions sound in law?

The application of the principle of illegality to recovery in tort claims is difficult. The principle (or legal policy) of illegality has been considered by the House of Lords or the Supreme Court four times in the last decade: see Gray v Thames Trains Limited [2009] 1 AC 1339; Hounga v Allen [2014] 1 WLR 2889; Les Laboratoires Servier and another v Apotex Inc and others [2015] AC 430 and Bilta (UK) Limited (in liquidation) v Nazir [2015] 2 WLR 1168 [ 2015] UK SC 23. In Hounga, Lord Hughes put the matter thus:

“54.

As Lord Wilson JSC’s penetrating analysis clearly shows, a generalised statement of the conceptual basis for the doctrine under which illegality may bar a civil claim has always proved elusive.”

In the course of his judgment in Les Laboratoires Servier, Lord Sumption observed:

“13.

… The doctrine necessarily operates harshly in some cases, for it is relevant only to bar claims which would otherwise have succeeded.”

In the course of his speech in Gray, Lord Hoffmann identified narrower and wider forms of the rule:

“29.

… [The Appellant’s] principal argument invokes a special rule of public policy. In its wider form, it is that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. In its narrow and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed upon you in consequence of your own unlawful act. In such a case it is the law which, as a mater of penal policy, causes the damage and it would be inconsistent for the law to require you to be compensated for that damage.”

In paragraph 32 of his speech, Lord Hoffmann emphasised the two forms of the rule stating that:

“The wider and simpler version is that which is applied by Flaux J: you cannot recover for damage which is the consequence of your own criminal act.”

This approach was approved by Lords Phillips, Scott and Rodger in Gray.

This case is not one where the Claimant seeks compensation for the direct or indirect consequences of a criminal penalty. The Claimant is not forced to rely upon any relevant illegality in order to prove his claim (cf Tinsley v Milligan [1994] 1 AC 340, Clunis v Camden and Islington Health Authority [1998], QB 978 and Cross v Kirkby The Times 5 April 2000; [2000] CA transcript number 321, CA). Rather, this case is concerned with the broader principle, recognised by Lord Hoffmann, which had been summarised by Sir Anthony Clarke MR in the Court of Appeal in Gray as follows:

“20.

… as applied to a case like this, where it is not suggested that the cause of action arises out of an illegal act, the question seems to us to be whether the relevant loss is inextricably linked with the Claimant’s illegal act or, as Beldam LJ put it, so closely connected or inextricably bound up with his criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.”

As Lord Hoffmann himself put it (paragraph 54) in Gray, the question is whether the:

“Injury [or head of claim] was the consequence of the

Plaintiff’s unlawful act.”

I deal with two preliminary points made by the Claimant. Firstly, the Claimant seeks to debar the Defendant from any application of the ex turpi causi principle on the ground that illegality must be pleaded and was not pleaded in the defence in this case. The Claimant asserts that: “all matters of illegality must be pleaded and particularised” relying on Otkritie v Urumov [2013] EWCA Civ 1196 at paragraphs 11/12.

I reject this argument. As the Otkritie decision makes clear in paragraph 11:

“If the facts giving rise to the illegality are such that the illegality is “manifest” or obvious, the court must take the point of its own motion.”

It seems to me that in this case, the issue was obvious as a question, although I must not be thought to mean that the answer to the question is obvious. In any event, the matter was raised in the counter-schedule at least by implication which put in issue any claim relating to the costs of deputyship.

The next preliminary issue raised by the Claimant is that it is said that he has no significant responsibility for his drug misuse and that the case therefore falls into the exceptional category identified in R v Drew [2003] 1 WLR 1213 and considered by Lord Phillips in his speech in Gray between paragraphs 9 and 15. I reject this argument also. I accept of course the evidence that the Claimant satisfies the diagnostic criteria for poly-drug misuse, substance abuse disorder and/or poly-drug dependence. I understand the psychiatrist’s evidence that for such an individual, further drug abuse may not be “volitional”. However, it seems to me there are two objections to the argument. Firstly, the Claimant cannot be taken to have lacked volition in relation to his drug abuse throughout his life. Insofar as the consequences of his past drug abuse are concerned, he cannot be taken to have no responsibility for such acts. Secondly, on his own case he has stopped abusing hard drugs and intends to avoid them in the future. However difficult it may be for him to live up to his intentions, it is a matter within his choice. He says he has made such a choice. Moreover, such a relapse would involve serious criminal offending (whether prosecuted or not) and the law cannot be seen to remove responsibility for such future offending in the way suggested.

In closing written submissions, the Defendant made three allied points which they say stand separate from their reliance on ex turpi causa. They say that the consequences of the Claimant’s past or future drug use were not caused by the alleged negligence, but rather by reason of the Claimant’s voluntary act, thus breaking the chain of causation; that recovery for such consequences would be unreasonable since they proceed from a failure by the Claimant to mitigate his loss and that such consequences were not foreseeable as resulting from the Defendant’s failure and thus the Defendant should not be required to compensate for any such consequences. It seems to me these arguments are closely allied to the wider form of the ex turpi causa rule identified by Lord Hoffmann. Indeed, in paragraph 54 of Gray he said the following:

“It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218) Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567).”

I take the view that these arguments, at least on the facts of this case, add little. Before the trial of the action, the period when the Claimant most obviously lacked capacity appears to me to have derived quite directly from his drug abuse, although the other contributory factors I have mentioned were undoubtedly present. Whether one takes the view that such historic lack of capacity arose from a break in the chain of causation or that such historic lack of capacity falls to be disallowed by the application of the wider principle of ex turpi causa is academic. Equally, the fact that a lack of capacity was not foreseeable by the tortfeasor at the time of the tort would normally be irrelevant: the tortfeasor must take his victim as he finds him. If the Claimant had lacked capacity for other reasons than drug abuse, that complication would have been equally unforeseeable but the Defendant would have had no proper argument for excluding the consequential costs.

I therefore exclude from the award any costs associated with a lack of capacity before the trial.

I have identified the period of a year from the award as presenting the Claimant with particularly difficult and complex decisions. Since I have concluded he will lack capacity during that difficult and complex phase of decision-making, even though he has currently stopped abusing hard drugs and even if he stays free of serious drug abuse, it follows that during this period his lack of capacity is not directly caused by or “inextricably bound up with” any illegal acts.

After the conclusion of that period, it seems to me that, if the Claimant lacks capacity for the more manageable decisions he will then face, it will be because he has reverted to abuse of illegal drugs with serious effects of his mind. I therefore decline to make any award in respect of the costs attendant on a lack of capacity after one calendar year from the satisfaction of the award in the case.

The parties have helpfully drafted a Scott Schedule capturing the various agreements and contentions. In addressing the detail of the various head of claim, I have attempted to carry over my conclusions into the Schedule, which I annex to this judgment. For some detailed issues the entry in the Schedule represents my judgment as to the contentions made. There remain outstanding some minor matters which will require completion before an overall figure can be finalised.

This is a complex topic, about which the experts have not reached agreement. It is agreed that the Claimant is faced by multiple factors which reduce his life expectancy: his spinal cord injury, his smoking, his diabetes and, if he reverts to abuse of hard drugs, that factor as well.

It is agreed that the factors are cumulative, but it is not appropriate merely to add together the reduction in life expectancy which would be derived from each factor, were it to exist in isolation. Fortunately the mathematics by which cumulative risks are to be calculated does appear to be agreed. The formula can be expressed as follows: if X is risk 1 at 25% reduction in life expectancy, and Y is risk 2 at 20% reduction in life expectancy, the cumulative reduction is reached by the formula X +

It is also agreed that the starting point must be the projected life expectancy of a 50 year old man in the United Kingdom in 2016. That projected figure takes into account future improvements in life expectancy. Figures for other parts of the developed world vary somewhat and some of the literature recites US or Australian “uninjured” starting points, and/or outdated starting points, which can be a trap for the unwary. The Defendant’s expert Mr Thumbikat gives 82 years at death as the current life expectancy in the UK and 86 years as the projected life expectancy. I accept that estimate.

The Claimant will understand that the process is a matter of statistics. As has often been said, the only certainty about such calculations which now follow is that they will be wrong. The uncertainties are as to how far wrong, and in which direction.

Experts who gave their views on this issue were Dr Waller and Mr Thumbikat for the Defendants, Mr Jamil and Professor Almond for the Claimant. There was a discussion before the trial between Mr Jamil and Mr Thumbikat, who appeared to agree on a reduced life expectancy to age 72, but it emerged this was not a true agreement but a misunderstanding. I need not tease out the history of that. During the trial there were further discussions between Professor Almond and Dr Waller leading to a joint Note of 4 February 2016. Following the trial I permitted supplementary reports from Mr Thumbikat and Mr Jamil, and further written submissions which were completed on 24 February. I have taken all that material into account.

The first step is to assign a figure for the reduction in life expectancy referable to the spinal cord lesion and the paraplegia.

The Claimant is to be categorised as a mid-thoracic paraplegic, or paraplegic at Frankel Grade B (incomplete preserved sensation only). This rather crude categorisation is to be applied when considering the literature. The scientific papers produced are relatively few in number. I will refer to them by the lead author’s surname and year of publication.

In his initial report of June 2015, Mr Thumbikat makes several key points. The data relating to life expectancy for those with non-traumatic spinal cord injury [“SCI”] is very sparse. Such patients tend to be older and to have more co-morbidities. However, given that the effects of such injury, the “manifestations”, are similar, Mr Thumbikat accepts it is reasonable to proceed from the data derived from traumatic SCI.

Mr Thumbikat then relies on the Frankel 1998 paper to suggest a 31% reduction in life expectancy for those in the Claimant’s category. This paper is based on UK figures. He looked also at the Australian study in Middleton 2012 which suggests a 12% reduction, and at Strauss 2006, an American study, which suggests a 20/21% reduction in further life expectancy. Mr Thumbikat then discounts the American and Australian studies and applies some additional reduction in the Claimant’s case, giving his view that, taking into account spinal cord injury related factors alone, the Claimant would have a life expectancy of 23 years, to age 72. The Claimant was 49 at the date of that report.

In my view that was a conservative exercise. Although the Frankel figures are the only British figures available, they are based on data ranging from 1943 to 1990. This is the oldest study in the literature relied on. One can of course set to one side the actual predicted life expectancies as outdated, as Mr Thumbikat did. However, the concern remains that the reduction in life expectancy may also be outdated. The authors themselves note that there had been a “considerable improvement in survival in the last 10 years”. This study excluded those who died within the first year following their injury, whereas the other relevant studies excluded those who died in the first two years, meaning that the latter studies more confidently exclude those who die from the immediate consequences of their injuries, which may of course not be confined to SCI. This point was acknowledged by the authors of Strauss 2006, commenting on the Frankel paper.

Mr Jamil for the Claimant criticises the Frankel 1998 paper on methodological grounds, and on the basis that the principal authors are clinicians without “background in data collection or scientific method”. He also criticises the paper on the ground that the “number of individuals … who fit the Claimant’s age group and level of injury was only 32”, meaning that the sample size was small. I am concerned by this. The only cohort of 32 I can find in the Frankel 1998 paper is those aged

46/60 at injury, whose injury was cervical, not thoracic (Table 2). The cohort for

“para[plegic] ABC” aged 31-45 at date of injury (the Claimant being 43 at date of injury) was 346 for injury years 1943-1990, (Table 2) and 152 for injury years 19731990 (Table 3). This is not encouraging when considering Mr Jamil’s methodological criticisms.

In Strauss 2000, the authors engaged in a huge study of long term mortality of American SCI victims, with an overall cohort of over 19,000 people. They looked at mortality after two years post-injury. The authors conceded that, since their cohort were injured between 1973 and an unspecified date close to the preparation of their paper in mid 1999, their mortality rates “may be overestimated for recently injured persons” because of possible improvement in long-term survival. I also note that their calculations are made by reference the 1992 US Life Table, which will have set a high benchmark for comparison with large numbers within their cohort. Thus a death in 1973 is compared with uninjured life expectancy of two decades later. Nevertheless, the additional years life expectancy from this study would suggest the Claimant would live until 72 (Table 6), before considering other factors than his SCI: 21.99 years, as opposed to 27.62 years, a percentage reduction of around 20%. On the face of it, this would seem to be a somewhat conservative figure, for the reasons I have mentioned.

In Strauss 2006, the authors look at improved survival for victims of SCI both in the immediate post injury period of two years and thereafter. Their conclusion is there has been a very major improvement in the early period and no statistical improvement thereafter. This is counter-intuitive, given what the authors characterise as the

“improvement in long-term rehabilitative care”. However, the study is large, and looked at a long period, from 1973 to 2004, with a database of nearly 39,000 people. The methodology appears to be sophisticated and the main conclusion for our purposes from this study is that the gap in survival between SCI victims who have survived two years from injury and comparable individuals from the general population may have widened, and there is no evidence that the gap has narrowed. If this is correct, then it serves to bolster the relevance of older studies (such as Strauss 2000) provided the study is focussed on the population two years after injury.

A similar conclusion was reached by the authors of Middleton 2012. They conducted a large study of the survival of SCI victims in Australia between 1955 and 2006. The study was confined to patients of a single specialised SCI unit in Sydney. They reviewed the literature to compare with their own findings and observed “we did not observe any trends towards reduction” in mortality after the second post-injury year.

However, what is notable about the Australian study was that the reduction in life expectancy for the cohort to which the Claimant belongs was markedly less than in the other studies. In the classification adopted here, the Claimant falls within “T1-S5 ABC”, in other words the broad range of paraplegics including those with a markedly higher lesion than his, and those with markedly lower injury. The Australian study found an 88% of normal life expectancy for this cohort: in other words, a 12% reduction. Although the cohort for this study was drawn from one large specialised unit, that fact would not seem readily to explain the discrepancy with the other studies, given that the mortality effects studied are confined to the period after two years from injury, when the great preponderance of patients will be living in the community.

The Australian study was attacked in a letter from Shavelle, Strauss and others 2013 on technical grounds, although the attack focussed on a cohort of more seriously injured tetraplegic patients. This led to a robust rebuttal by Middleton, Walsh and others 2013. I am not equipped by any evidence to resolve this dispute. Mr Jamil makes the point that the journal “Spinal Cord” did not retract the Middleton paper, following the Shavelle, Strauss letter, and I am prepared to give the Australian study some weight.

Mr Jamil also makes the points that the Australian population, like that in Britain, was more homogeneous than the American, and that the Australian health care system is more akin to the NHS in Britain.

The final paper is Shavelle 2015, which essentially makes two points: firstly that there has been no improvement in long term survival post two years from injury over the last 30 years, and secondly, as a consequence, there is said to be a relative worsening of the life expectancy in SCI victims compared with the general population. This study is based on the American population and it maybe reflects the specifics of their healthcare systems over the relevant period.

I bear in mind two points made by Mr Thumbikat. Firstly, he says that the problems attendant on non-traumatic SCI are often worse than those who suffer traumatic injury. He suggests no value for this effect. Whilst I can understand the point in principle, it is hard to see why it should make a significant difference in this case. There is no indication here that the spinal lesion was connected with any other health problem. As I have said, Mr Thumbikat does not quantify this suggested effect.

Secondly, Mr Thumbikat suggests that the Claimant has more problems and difficulties than most SCI patients within his category. I understand this point in general terms, but, again, Mr Thumbikat does not quantify the effect. Secondly, it

Taking all those matters into consideration, including the Australian study as a countervailing factor to more negative matters, I conclude the proper reduction for SCI is a 20% reduction in life expectancy.

I turn to the other factors: diabetes, smoking and drugs. In relation to all of them the Claimant has argued that these factors will affect many in the uninjured population, and thus the effect will be lessened. As a refinement of that proposition, the Claimant’s post trial Additional Note argues as follows:

“We note that in the Strauss paper (“Trends in Life Expectancy After Spinal Cord Injury”; Arch Phys Med Rehabil Vol 87), which took its data from the NSCISC database – the same database which provided the data for Strauss’ paper from 2000

(referred to in the table above) the authors state that : “Another limitation is that the NSCISC database does not include information on many factors such as smoking history, associated injuries, or pre-existing major medical conditions that might be of prognostic importance in determining life expectancy. If there were trends in these potentially important prognostic factors, it would confound the assessment of overall trends in mortality over time” (p.1084). ”

One part of that argument I have already reflected in my conclusion. The marked downward trend in smoking in the western world is likely to be part of the general increasing life expectancy. That is one reason why the 1992 uninjured life expectancy in the Strauss study will tend to produce an unrealistically high reduction in mortality for those with SCI, in a cohort which goes back to 1973.

Beyond that point, I cannot accede to this argument from the Claimant. The injured and uninjured population will have contained smokers and diabetics, in all these studies. It is only if it were shown that there were more smokers or more diabetics in the injured cohort as opposed to the uninjured cohort, that there would be a risk of double counting in respect of smoking or diabetes. In the absence of such evidence, the SCI studies must be taken to have smokers and diabetics in each group in equal numbers, and thus correctly to have identified the effects of SCI, not these confounding factors. Matters would be different if we were relying on the studies for actual life expectancies, rather than quantifying reduction from the projected UK male life expectancy, but we are not.

The Defendant’s expert Dr Waller relies on the paper by Leal and others 2009 for a prediction of reduction in life expectancy for Type II diabetic smokers, factoring these two risks together. The Leal paper predicts life expectancy for Type II diabetes by reference to historic blood pressure, a measure of long term diabetic control [Hb A1C) and total cholesterol. Mr Storey has systolic blood pressure below 120. His total cholesterol is unknown and there has been no measure of his long term diabetic control. Dr Waller assumes that it is mid range. Dr Waller takes the figure for a 55

One problem with this approach is that the Claimant is 50, not 55. This ought to benefit the Claimant, although to a marginal degree. A more important problem is that the Leal paper is based on historic ages at death, whereas the projected life expectancy from which Dr Waller has calculated the percentage reduction (correctly) incorporates future improvement in life expectancy. Without more, this would be to compare apples with pears. The Leal paper looked at deaths from a database, which were subjected to computer simulation modelling. There is no evidence before me to assist whether the reduction from a projected 86 to a projected 72/73 is methodologically correct.

A further problem with the application of the Leal paper relates to the Claimant and his diabetes. He was diagnosed quite recently, but when he was extremely overweight. He has now lost many kilos, indeed many stones in weight, and is not overweight at all. There is no contemporary evidence of the state of his diabetes. Professor Almond, the physician expert for the Claimant, says he would be surprised if he was frankly diabetic at all today, although he concedes there must be a reduction in life expectancy in respect of diabetes. The authors of Leal 2009 themselves write that “the risk of many types of [adverse] events also increases with the duration of diagnosed diabetes”. The Leal paper assumes five years from diagnosis, which would fit reasonably well with the timescale in the Claimant’s case, but may well not fit with an individual who has lost such a dramatic amount of weight over the relevant time.

Mr Jamil’s approach to the risk of diabetes and smoking is agreed as to the mathematical methodology. As to the values, Mr Jamil suggests 11% additional reduction taking 22% as the outcome of his calculations in respect of the diabetes viewed on its own. There is no real breakdown of how he reaches those figures. However, they are supported by Professor Almond.

Dr Waller, in discussion with Professor Almond on 4 February, modified his position somewhat. Conscious of the risk of double counting, he reduced his estimate of these risks, taken together, to 30%.

Doing the best I can, I consider that the combined risks for diabetes and smoking should be factored in at 25%.

Following the agreed mathematical approach, the risks of SCI, diabetes and smoking, taken together, can be represented as:

Finally, it is necessary to factor in the risk to life arising from the probable resumption of serious drug abuse. This aspect was discussed between Professor Almond and Dr Waller on 4 February. Professor Almond advanced the position that the reduction should be a further 22%, which was “half the risk associated with uncontrolled drug use (which includes daily intravenous drug use).” Dr Waller appeared to agree, applying “22% for substance abuse disorder.”

In their closing submissions of 11 February, the Defendants attacked this apparent concession, and there may be force in their concern. Dr Waller’s principal position of the effect of drug abuse, in his report of 23 June 2015 was that if the Claimant continued intravenous drug use, then his life expectancy would be “reduced by an amount closer to the estimates in the cohort studies, i.e. 16 years (43.2%). Dr Waller had already observed that this was based on an overall reduction of 13.6 years in life expectancy, in a UK study, a 15.6 years reduction across a Swedish study of men with substance abuse disorder, and on a longer term study of US males with an 18.84 years reduction. These average reductions make no allowance for the age of the individual, how long they had already survived etc. The figures are crude, and there is really no evidence as to the conditions under which these cohorts survived and died. Since all were studies of dates of death, all were historic.

It seems to me right that the Claimant, even if he returns to intravenous drug abuse, is likely to do so in more controlled conditions than the general population of intravenous drug abusers. In such circumstances, it is agreed he will lack capacity, and others will be in a position to take considerable control of the conditions of his life. He is unlikely to find himself in the chaotic conditions confronted by those who saw him in Exeter. I therefore conclude that the reduction in life expectancy is likely to be somewhat less than these studies imply. Doing the best I can, I find there will be a 30% reduction in life expectancy from this cause, viewed on its own.

The outcome of that finding is the following calculation:

In their final amended Schedule of Loss, the Claimant’s counsel advance a life expectancy to age 66, therefore a further 16 years of life. They submit this should lead to a multiplier of 12.54, based on Table 28 of the Ogden Tables. This seems to me an error. Table 28 suggests a multiplier of 12.54 for 15 years term certain at 2.5%. Therefore (fortuitously for the Claimant) that is the appropriate lifetime multiplier given my finding as to the Claimant’s life expectancy.

The appropriate figure under this head is £192,500. This reflects the extent of the Claimant’s disability, the limitations on his independence, the extensive impact on his psychological state, his age and his life expectancy, as I have found it to be. I have borne in mind that his pre-existing shoulder disability has meant he suffers considerable pain in the shoulder as a secondary consequence of his spinal injury and he is likely to undergo further surgery to the shoulder which he would otherwise have avoided. I also bear in mind the severe spasms, which are fairly relentless and cannot be relieved by intravenous Baclofen. I note that the Claimant falls within Section 44(6) of the Legal Aid Sentencing and Punishment of Offenders Act 2012, and thus is ineligible for the 10% uplift in general damages provided for in Simmons v Castle [2013] 1 WLR 1239.

I consider that damages in this case must be provisional, to allow for the risk that the Claimant develops syringomyelia. I am satisfied that Section 32A of the Senior Courts Act 1981 applies. Hence I have reduced this aspect of the award from £195,000.

Interest on that sum is to be awarded in the sum of £11,550.

I approach this head on the following basis. I prefer the evidence of Ms Sargent as to the aggregate rates of pay as the basis for this award: the help was given at various times, and travel was involved in some instances, particularly Mr Pearson. Clearly gratuitous care by CD and her partner can only arise from August 2014. I discount a proportion of this, since it would have arisen anyway, and thus I reduce by one third the amount estimated by Ms Sargent. However, there have been two weekend stays, which should be recompensed, and I have allowed an additional £200 in that regard. Gratuitous care must be carried forward to 1 February 2016 at those rates. I regard a 25% discount to be appropriate. I have found the mathematics of the Defendant’s submissions problematic. I ask the parties to agree the correct figure on those bases.

The Claimant’s case would have been difficult and complex even if he had not been abusing hard drugs in the relevant period. However, some of these costs were clearly derived from the drug abuse and would not have arisen otherwise. It is not possible to analyse this closely with any accuracy. Doing the best I can, I allow 80% of the claimed cost, therefore an award of (£34,769 x 80% = £27,815).

I allow Schedule items (i), (ii), (iii) and the first item numbered (iv). The second item number (iv) is no longer claimed. I allow items (v), (vi) and (vii) as claimed. I allow £300 for item (viii). I then allow item (ix). This gives a later award of £10,260 plus item (iii) and the final sum up to trial under item (v). Hence I cannot provide the final total. The parties are asked to finalise here.

The figures awarded are as set out in the Scott Schedule. The last items are incomplete and the parties are asked to finalise.

The Defendants are correct to say that the costs associated with the Claimant’s drug abuse are not recoverable. Thus the costs of Broadway Lodge and the Gladstone Clinic cannot be recovered. The care in the Royal Buckinghamshire Hospital was necessitated because of the combination of pressure sores and the drug problem. They cannot be recovered in full. However, it seems to me reasonable that some recovery should be made, since the Claimant did need attention to pressure sores

I reject the cost of the fridge freezer as a duplication of a claim under aids and equipment. Council tax would have arisen anyway and is rejected. I allow the cost of the Claimant’s move to Cornwall to rented accommodation in Illogan, when he might very likely not have done so if mobile. There would in any event have been much less expense, if the Claimant moved when uninjured. I therefore allow the house clearance and removal costs. I reject the water and sewage bill as unattributable to the injury, as was the repair to the Exeter flat. The extra furniture for the house in Cornwall is attributable. The costs incurred whilst looking for accommodation are attributable, but unspecified, large, and evidently estimated. I allow £4,000: see Annex I.

I accept that the search for suitable property in Cornwall was attributable to the injury, and was problematic. I accept it was reasonable to instruct a property consultant. Mr Chevalier gave evidence that the search was difficult. There is no evidence that the Claimant was deliberately difficult in communication, but it seems probable that his drug problems and the chaotic progress in late 2015 may have added to the cost. The cost is also high. Doing the best I can I award £15,000.

The rental deposit is returnable. I allow the rent at £1,100.

As a result of the above, the past holiday costs cease to be claimed.

As I have made clear above, in my judgment the Claimant did lack capacity in the past, but that was attributable to his abuse of hard drugs and is not recoverable. I do not repeat my findings on this issue.

The Claimant had a very patchy work record. Given my findings about his involvement with drugs, and as to his other problems, I conclude that only a very modest award for loss of future earnings is appropriate pursuant to Blamire v South Cumbria Health Authority [1993] PIQR 01. I award £5,000.

As I have already found, the Claimant will be under a disability for a year following the award, as the major and complex decisions are taken as to the setting up of his permanent arrangements. This will be so whether or not he reverts to misuse of hard drugs. However, it is also important to consider the nature and extent of such a disability. It means the Claimant needs intensive advice and support during that period to assist with his financial and other affairs. However, such a disability will not add to his day-to-day care needs, or costs.

I have found it probable that the Claimant will revert to abuse of hard drugs, although it is not possible to say when, or to specify the extent of such relapse. However, if and to the extent such relapse has an impact on his care needs and costs, it will not be recoverable, for the reasons I have given. It follows that his future care claim must be determined on what the experts have referred to as “Scenario A”.

In her addendum report of February 2016, Ms Sargent for the Claimant advanced slightly lower figures for care and case management through to age 55. Her annual figure is £79,420. I accept this figure, subject to one adjustment. For the first year of this period, the Claimant will be under a disability and I find there should be an allowance for an additional 60 hours case management at £98 per hour plus travel expenses.

The care and case management award for this period therefore becomes:

SCOTT SCHEDULE ANNEX 1 TO JUDGMENT

Item Claimant Defendant Award

Berlingo