Syred v Powszecnny Zaklad Ubezpieczen (PZU) SA & Ors

In the course of the trial Dr Cockerell and Dr Mort agreed that Mr Syred has suffered a moderately severe brain injury; that the neuropsychological sequelae are secondary to the brain injury; that they are permanent and not amenable to neurological treatments; will cause him lasting disadvantage in the open market place; and will affect his activities of daily living lifelong.

The Neuropsychological experts (Mr Bracey; Dr Leng) likewise agree that Mr Syred has suffered severe traumatic brain injury (TBI) resulting in personality change, impaired intellectual and cognitive efficiency, memory and central executive functioning and fatigue; and that these are permanent.

One important consequence of a frontal lobe TBI such as this is a lack of insight by the victim into his true condition. This is of particular significance on the issue of post-accident employment capacity.

The symptom of fatigue was strikingly evident to me in the course of the trial when observing Mr Syred as he sat in Court. There is also a permanent and visible ‘dent’/scar on his right forehead.

The evidence, from various sources, of the other sequelae is well summarised by Dr Mort in his report:

“He easily loses track during conversations or domestic tasks (concentration and working memory).

He struggles to carry out more than one task at a time (multi-tasking).

He forgets recent conversations, appointments and that he has visited certain premises recently (episodic memory).

He is reliant on his satellite navigator device for most journeys, having been good at remembering directions previously (geographical memory).

He appears slow in understanding what has been said to him in conversation, having previously been good at engaging with people (communication).

He has started swearing, has appeared insensitive to others and, on one occasion has seemed over-familiar (self-control and response inhibition).

He is slower than his peers at his job and is prone to errors (processing speed).

He is described as having been someone who could plan and adapt well. But now he finds he fails to foresee the consequences of his action (planning and insight).

He may be rash in his decision-making (judgement). He shows a poor awareness of time.

He often has days when he feels depressed and lethargic (mood).”

In my judgment, these were fully established by the expert and lay evidence which I heard. I next consider Mr Syred’s condition and personality before and after the accident.

On this I heard the lay evidence of Mr Syred, his wife Samantha (‘Mrs Syred’) (who married him after the accident), his father (Richard), two work colleagues (Caroline Hollings, Paul Bunting) and read the evidence of his mother (Mrs Hall), brother (Adam) and a work colleague (Kris Gumbrell). I also heard the evidence of the professionals who have provided support to him post-accident (Kaaren Wallace; Christine Stobbs; Joanne Johnson).

I found Mr Syred and Mrs Syred to be honest and most impressive witnesses in every respect. There was no attempt to exaggerate or evoke sympathy in evidence which was given in an entirely straightforward manner; and quite rightly the Defendants did not suggest otherwise. The one difficulty with Mr Syred’s evidence is the continuing effect of his diminished insight into the effect of the accident on his working capacity; but this is improving with professional support and daily experience. I fully accept the account which Mr and Mrs Syred gave on all issues, including all the physical and cognitive symptoms. Likewise I accept the evidence which the other witnesses gave as to his condition.

Mr Syred was born in 1973. After school and a year off in Australia, he attended Brighton University where he obtained a 2.1 BSc (Hons) degree in Building Surveying. At University, he was diagnosed with dyslexia and in consequence given extra time for completing exam papers. He began work as a building surveyor. In due course he married and children were born in 2002 and 2005.

In 2002, he joined the brewers Greene King (GK) as Property Development Manager. GK’s Human Resources Director, Caroline Hollings, gave evidence of his career progress through the company. GK was evidently a demanding employer with a challenging work ethic. Unlike some of his colleagues, Mr Syred satisfied the demands of GK’s ‘skills matrix assessment’ and was placed in their category of ‘very effective/high achiever’. He showed confidence drive and enthusiasm and thought ‘outside the box’. He could be ‘cocky’ at times but was likeable and a good team player. He was ‘sharp-minded’ and had a very good memory. With 300 pubs in his remit, the work was demanding but he was adept at forward planning and multi-tasking. He participated enthusiastically in company team events such as the sailing regatta and pantomime. The sailing reflected his leisure time enjoyment of vigorous outdoor pursuits (e.g. scuba diving, horse riding, sailing, and climbing). In 2009 he completed the Three Peaks Challenge. Ms Hollings found him a pleasure to work with and considered him to have a very promising future. Mr Kris Gumbrell who was Operations Director at GK said in his statement that he was a ‘massive fan of his work’ and that Mr S was a ‘hugely effective and very capable project surveyor’.

All that said, in 2008 Mr Syred left GK and joined the brewers Young’s as a building surveyor at a lower salary. The demands of work at GK were adversely affecting his marriage and he wanted to achieve a better work/life balance. Nonetheless his ambition and capacity for hard work were undiminished and he saw the job as a ‘stepping stone’ for his future career. As time went on he became discontented at Youngs; and in particular did not get on with his line manager.

In about May 2009 his wife moved out with the children and divorce proceedings began. A month or so later he met Kate Cieslar and they soon decided that they wanted to spend their lives together. The accident happened when they were visiting her family in Poland.

He was in hospital in Poland for several days, including a period of induced coma, and then returned by air ambulance to England. At St George’s Hospital he underwent four surgical procedures in respect of fractures to his spine, pelvis and right hand; and for a life-threatening aortic injury. He was then transferred to the Royal Surrey Hospital for rehabilitation.

In March 2010, he was discharged to his mother’s care on the Isle of Wight. In June 2010 he moved back to his home in Sussex, but with his mother providing continuing care. Despite various attempts, his relationship with Ms Cieslar did not survive, eventually ending in May 2011.

Young’s kept him on full pay for 6 months but then began to talk about putting him on statutory sick pay. In August 2010, against his GP’s advice, he returned to work at Young’s; at this point still on crutches. Young’s wanted to phase him in by part-time work, but he was concerned about his financial position and determined to work as much as possible. Although Young’s were not happy about it, it was eventually agreed that he would be on full pay for reduced hours. His work was office-bound, which he did not enjoy. He had great problems with the work, for example making mistakes in processing information, concentration and memory. He continued to suffer many headaches.

On 9 February 2011, Young’s sent him a letter concerning potential redundancy. This followed its acquisition of another company (Geronimo) and a consequential plan to reduce the number of property surveyors from two to one. Following consultation he was selected for redundancy in March 2011 and given a redundancy payment of £10,000. He considers that his working difficulties must have played a part in his selection.

In May 2011, soon after ending with Ms Cieslar, he met Samantha Phillips and there was immediate mutual attraction. They became engaged in August 2011 and married in May 2012. The speed of all this caused friction within his family, in particular his mother.

At the end of May 2011, he found work with the brewers Hall & Woodhouse (HW), again as a building surveyor. This was initially 6 months probation. Paul Bunting was his line-manager from February 2013 and his evidence made clear the problems that Mr Syred had in doing the job; in particular with slowness in processing information, over-focussing on one particular task; inability to multi-task; problems with memory; and fatigue.

Mrs Syred gave a vivid account of the role she has had to play in helping him to cope with organising and carrying out his work and domestic tasks; in effect as his ‘time manager’ and personal organiser. The inevitable domestic strains have been further aggravated by the disinhibition which leads him to make inappropriate comments about other women.

His employment with HW nonetheless continued after the probationary period, and he received an increased bonus in the year to April 2013 (‘Great work this year’). However the difficulties resulting from his head injury could not be overcome and in November 2013 it was agreed that he would give his notice to resign with effect from 31 January 2015. His resignation letter to Mr Bunting of 1.11.13 thanked the company for its ‘fantastic support’ but accepted that his position was ‘…untenable given [his] reduced capabilities as a result of the accident…’ and hoped that there might be an opportunity for future part-time or consultancy work.

During this period of employment Mrs Syred gave birth to their two children Evie (December 2012) and William (July 2014). Because of his cognitive problems (e.g. forgetfulness; distraction/over-focus on other tasks etc.) she cannot rely on him to look after the children.

In June 2014, through his solicitors’ initiative, Ms Christine Stobbs, a vocational rehabilitation practitioner, was introduced to assist him in the task of finding alternative, sustainable, employment after he had left HW. This included meeting Mr Bunting to discuss post-redundancy options. Amongst the various deficits, she particularly noted his lack of insight into his condition and employability.

In February 2015, Ms Kaaren Wallace was engaged as Mr Syred’s case manager with a focus on support in finding work and in his domestic and daily life.

In March/April 2015, Ms Stobbs recommended that he received psychological therapy to help him come to terms with his new situation and this was supplied by Joanne Johnson. I shall consider the Defendants’ criticism of Ms Stobbs, that this referral should have been made by her much earlier, when I deal with the claim for the cost of her fees.

Ms Johnson’s work included dealing with the post-accident disinhibition which was adding to the domestic strains; as well as the other aspects of his cognitive deficit.

In April/May 2015 problems arose when a neighbouring farmer set up a ‘glamping’ site on his land. This – including Mr Syred’s unsuccessful objection to the grant of planning permission - caused friction with the farmer and noise from the activity. He decided that they had to move home, after 15 years, and in consequence could not take up a job offer to be a part-time driver for a local pharmacy. They moved to Chichester where they now live; as before in rented accommodation on an Estate.

In May 2015 his job search led him to part-time employment, again in building surveying, with Brewhouse & Kitchen Ltd. (‘BK’) where the Chairman was Kris Gumbrell. They discussed the effect of the accident and, in Mr Gumbrell’s words “…We took Robert on to help his rehabilitation and to see what level of work he could manage and how he could progress.” They agreed he would work for 2 days a week at the rate of £50 per day.

The rate was kept low in order to ensure that the total was less than the amount (£102) at which he would lose social welfare benefits. Mr Syred had always been loth to apply for benefits and it was only as a result of Kaaren Wallace’s involvement that he had obtained (backdated to February 2015) benefits in the form of Employment Support Allowance (ESA), Personal Independence Payment (PIP), Housing Benefit and Council Tax Reduction. Contrary to the Defendants’ submission I consider that this was a sensible and reasonable course in the position which he found himself.

As it transpired the work was simply too much for him. The combination of cognitive and physical meant that it was taking him all week to do the supposed two days work; and his ways of working caused exhaustion to him, stress within the family and increasing concern to his employer. Mr Gumbrell’s witness statement demonstrates his intense commitment and enthusiasm for the work; but also his unwillingness to follow instructions, inability to prioritise or multi-task, disorganisation, aggressiveness and disinhibition. As he puts it ‘It was not the Rob I knew from before’. Furthermore his ability to work was again dependent on a very substantial input of help from Mrs Syred, as his time-manager and organiser. The problems were of course aggravated by his lack of insight which Jo Johnson’s work was seeking to address.

Adding to the problems, in the summer of 2015 he had two hospital admissions for an unrelated condition of pancreatitis and the removal of his gall bladder.

Mrs Syred’s fourth statement (13.10.15) demonstrates the enormous stress which she was facing as mother of young children, care and work assistant to her husband and the fear that she was becoming a ‘mother’ rather than a wife. This was exacerbated by his disinhibited behaviour and the fact that the (necessary) professional help was all being provided by women.

By the end of October it was clear that the job could not continue “: see Mrs Syred’s fifth and final statement (12.11.15). In consequence of Mrs Syred’s intervention it was agreed that his contract should be terminated with immediate effect. This was confirmed by Mr Gumbrell’s e-mail of 2^nd November which noted “…you have been a big help, but I firmly believe that you are putting yourself at risk if you carry on as you are…You have done well, but I fear the pressure and responsibility at this stage is too much, you have been through a lot…”

This all happened less than a month before the beginning of the trial and he is currently unemployed. I turn to the other injuries which he sustained.

There were lateral compression pelvic fractures, with an injury to the symphysis at the front and right sacral ala at the back. This required surgical fixation. The orthopaedic experts (Rickman/Korab-Karpinski) agree that acute issues would have settled in 6-12 months. Mr Rickman considers that there may be some ongoing backache from the sacral fracture; Mr Korab-Karpinksi disagrees. Mr and Mrs Syred both gave clear evidence of the back pain which he suffers and I accept it as attributable to the accident.

Thoracic spine fractures involving the T6-T9 vertebral bodies were treated by surgical fixation. The orthopaedic experts agree that these would have healed over 3 months, with symptomatic changes lasting 6-12 months. He will experience occasional aches and pains on more physically demanding activity. The evidence of Mr and Mrs Syred again demonstrates this. He is at risk of developing adjacent segment disease in the next 20-30 years.

Cervical. The experts agree there is no evidence of injury to the neck. However there were no neck problems before the accident and he gives clear evidence of pain and discomfort since the accident. Mr Rickman considers that in view of the head injury the neck would have been implicated. Mr Korab-Karpinski considers that the symptoms are constitutional. I prefer Mr Rickman’s opinion and conclude that the continuing neck symptoms are attributable.

Lumbar. A small avulsion fracture through the L2 vertebra, which would unite in 6-8 weeks, with symptoms usually lasting no more than 6 months. They agree that Mr Syred’s complaints of low back pain probably relate to constitutional changes or the sacroiliac joint.

The urological experts (Fowler/Miller) agree that the pelvic injuries resulted in sporadic urinary tract infections and incontinence for 9 months. He suffers increased urinary frequency in the day and night and intermittent spraying and dysuria. This is unlikely to improve. It is almost certain that he will need bladder neck/prostate surgery in the future; 60%+ of that need is due to the accident. There is a 10%-15% chance of a further stricture developing. There is an increased risk of urinary tract infections, 60% +. He will need an annual urological review.

There was erectile dysfunction until December 2010. A subsequent period of dysfunction (June 2011) required help with an oral PDE5 inhibitor. Sexual function has returned to normal but it is likely that he will require PDE5 inhibitors in the future.

The deceleration effect of the accident resulted in a partial tear of his thoracic aorta: Professor Bradbury, Consultant Vascular Surgeon. This injury was repaired by means of an aortic stent graft. This will require close supervision by a vascular surgeon and regular CT scans for the rest of his life. Further vascular intervention is likely to be necessary at some point, but probably in years rather than months.

Bilateral pneumothoraces and lung contusions have left him with pulmonary function of 85-90% of normal : Dr Limbrey, Consultant Respiratory Physician. This should not affect his capacity for work.

6 fractured ribs : 6-8 weeks to heal, with symptomatic changes lasting 3-6 months.

Fractures of the right second and third metacarpal bases, which would have healed over 6-8 weeks and settled over 6-12 months. Mr Rickman considers that there will be some slight impairment of grip but no functional deficit; whereas Mr Korab-Karpinski considers that there will be no impairment of grip or dexterity. I prefer Mr Rickman’s opinion, which is supported by Mr Syred’s account of continuing weakness in this hand.

Mr Syred has difficulties with balance which cause him to lean backwards and put extra weight on his heels. Lengthy walking is impeded by pain in his feet, particularly his right foot and toes, with the middle toe sometimes ‘locking up’. He finds that the insoles which he has been prescribed give him better support and reduce pain. The claim for provision of insoles is supported by Mr Collins, Consultant Orthotist. Dr Cockerell attributes the balance problem to the brain injury, further supported by the test which had excluded one potential non-neurological cause, i.e. vestibular disturbance.

In disputing this injury the Defendants point to the absence of neurological signs relating to gait or lower limbs in Dr Cockerell’s examination; to GP records of pre-accident trauma and pain in the right foot (1989, 1993); to the absence of evidence (e.g. hospital notes) of injury to the feet/toes in the accident; to Mr Rickman on first examination (23.3.11) recording no foot problems and that walking was relatively normal, but on the next occasion (19.7.13) recording significant problems in the right foot and great toe; to Mr Collins’ contrasting record (3.7.13) of problems in the ankles; and to his statement that he could not fully explain all the benefits that Mr Syred claims from the insoles, requiring ‘sound clinical evidence’ of benefit following fit and supply and recommending an updated report to substantiate the recommendations.

I accept Mr Syred’s account of his symptoms. As do I, Mr Collins found him a truthful witness who did not exaggerate his symptoms. It is unsurprising if each symptom is not always referred to on each occasion of a medical examination. I accept his evidence of the various pains and restrictions, including the problems with his toes and both ankles. This includes his hearsay evidence of his mother in the Polish hospital relocating a dislocated right big toe. I see no reason to conclude that the distant pre-accident foot problems are the cause of his post-accident symptoms. I accept Dr Cockerell’s opinion that the problems with balance are linked to the brain injury. It is not unusual for the precise mechanism of a medical problem – or of the beneficial treatment - to be precisely explicable. As to Mr Rickman, he expressly defers to orthotic opinion. Although not mentioned on his first examination, the walking problems were referred to in a letter from Mr Syred’s solicitors (8.12.11) which accompanied Mr Rickman’s report.

The difficulties for the Court in assessing damages pursuant to Polish law are reflected in the parties’ rival submissions. Mr Cory-Wright’s primary submission is that, in the absence of evidence from a medical expert on the application of the percentage table in the Ordinance, the Court cannot realistically be asked to carry out an assessment on that basis. In consequence he submits that English law (and hence JC Guidelines) should be applied and proposes a total award of £180,000 on that basis. For the reasons given above I do not agree that English law should be applied.

His alternative submission is to take the Ordinance as a starting point; to hazard a calculation of the total percentage from the accumulation of each relevant category of injury in the table; and then to take account of the evidence that an award for tetraplegia (800,000Z) was double the table maximum (4,000Z x 100) and the injunction against slavishness. The total percentage is put at ‘a range of figures from about 100 points to about 200 points’. At 4000Z per point this produces 400,000–800,000Z (i.e a range of £66,666 - £133,333). It is also submitted that the Court should take account of the fact that the Claimant lives in England and thereby increase the award.

The Defendants do not substantially disagree with the approach of using the Ordinance as a starting-point. However they submit that the burden of proof on the application of Polish law to the facts is on Mr Syred and do not make any submission as to how the Ordinance should be applied against the subject injuries. They say that the fact of Mr Syred’s residence in England is of no significance in practice.

Although submitting that the JC Guidelines should not be used as an aid to the assessment of damages under Polish law, the Defendants do suggest that the Guidelines should be considered at the very end of the process. They say that the Polish award must be ‘somewhere beneath the standard award for injuries of maximum severity in the Polish courts’ assessment system’; which they identify at 400,000 – 800,000Z. At this point they draw a comparison with the highest awards under English law (put in the region of £300,000 for tetraplegia, £215,000 for paraplegia) and submit that the English award for these injuries would be about £90,000. They conclude that the award should be in the bracket of 200,000Z (one-half of 400,000Z) – 266,666Z (one-third of 800,000Z). This produces £33,333 – 44,444.

The approach of each party has evident problems. Mr Syred’s use of the Ordinance without expert medical assistance on its application to the table results in a broad and impressionistic primary assessment. Conversely, the Defendants’ approach involves a comparison between two very different systems of assessment. In particular, the Ordinance method of totalling percentages for each (permanent) injury and then applying a 100% cap is in contrast to the English method. This does not ultimately involve totting up injuries but requires the Court to stand back from the individual figures and to reach a global award – usually less than the sum of its parts – which reflects the overall pain suffering and loss of amenity : see e.g. Sadler v. Filipiak [2011] EWCA Civ 1728 per Pitchford LJ at [34]. In England the Guidelines and practice produce an effective maximum award of about £300,000; but that total will almost certainly not be reached by an aggregation of individual lesser injuries. Accordingly the comparison is not ‘like for like’.

In any event, if English law does not apply, there is no good reason why the Court should have any regard to the level of English awards. (I should record that I expressly asked the parties to provide the Court with their figures on the alternative English basis).

All these considerations leave the Court with a difficult task. I have concluded that I should not take account of comparative English awards for pain and suffering, because Polish law provides no reason to do so. Equally I do not have the material to make a useful estimate of the figure which would have been reached if the claim was to be determined exclusively by reference to the Ordinance percentage table. Mr Cory-Wright’s hazarded total of 100-200%, thus equal to or capped at 100%, when combined with the wide brackets for so many table items, provides too uncertain a foundation for any such calculation. In any event, the Ordinance is, at best, no more than a starting point. All that said, it is appropriate to give some weight to the fact that, to the extent that the Ordinance is used as a starting point, it adds up the individual injuries, subject to the 100% cap.

I reject the suggestion that Mr Syred has failed to discharge the burden of proof of his claim in accordance with Polish law. In my judgment the right approach is to recognise and give effect to the broad discretion which Polish law gives to the Court and there is ample evidence to do so. For that purpose the Court should give particular weight to the evidence that the highest award has been 800,000Z; to the global range of injuries and their effect; and that account may be taken of the fact that the Claimant lives in England.

As to the latter point, I acknowledge that the appellate decision concerning a German claimant did not in fact result in a larger award than that which was given by the lower court. However there is evidently a discretion to take this factor into account and I consider that the award should reflect, without requiring specific evidence on the point, the higher standard and cost of living in England and so award a rather larger sum than if he lived in Poland.

Bearing all these points in mind I must simply do the best I can to award an appropriate figure for non-pecuniary loss. This is a case where Mr Syred has suffered a serious head injury with permanent adverse consequences, together with the wide range of other injuries and sequelae outlined above. In my judgment the appropriate award under Polish law is 300,000Z or £50,000.

Pecuniary loss

The parties agree that Polish law differs from English law to the extent that credit must be given for certain state benefits received. There is however a dispute as to whether this applies to those benefits which fall within the ambit of the Social Security (Recovery of Benefits) Act 1997. It is otherwise agreed that the claim of pecuniary loss falls to be assessed in accordance with English law. I now consider the heads of claim. The references are to the numbering in the Schedule of Loss.

There is now agreement that (i) Mr Syred’s immediate pre-accident earnings at Young’s were £2637.24 pm net (ii) actual earnings received to date of trial are £106,407. The dispute concerns his past earnings if uninjured.

Mr Syred claims that uninjured he would have continued to earn at the same rate but subject to 2% annual increases, either at Young’s or in equivalently paid alternative work with another employer. In addition he claims a sum (£20,000) to reflect the prospects that he would have improved his remuneration and/or achieved the status of chartered surveyor.

The Defendants submit in particular that : his redundancy was unrelated to his injuries or he would have resigned in any event; there is no evidence that he would thereafter have earned more than at HW; he would have wanted the easier lifestyle and work/life balance which HW provided; he would not have sought chartered status; the expert evidence does not justify any annual increased remuneration in this sector. In short, that his career path until termination of employment with HW on 31.1.15 would have been the same.

In the light of all the evidence I have no doubt that, before this accident, Mr Syred was a highly driven, hard working, proud (in the best sense) and ambitious man, who enjoyed respect from his employers and work colleagues.

That said, I accept that the employment picture was to some extent qualified by the following factors. First, he was a person who could hold and give vent to strong adverse views about those in authority over him (e.g. his line manager at Young’s). I note the pre-accident personality questionnaire at Young’s which included the comment that ‘In distress he may become overwhelmed by detail, become rude and perhaps not to realise the impact his behaviour may have on other people. May also be unable to focus and lack direction.’ (4/346).Secondly, he was less motivated by status for its own sake than the practicalities of what that status would or might produce. Thirdly, and driven as he was, he was evidently concerned by the need for an appropriate work/life balance; and for that reason had sought to protect his first marriage by moving to a work environment with a (relatively) less demanding ethic and at the cost of lower earnings for equivalent work. That said, his marriage was over by the time of the accident.

The first question concerns the cause of his redundancy. Mr Syred believes that his injuries and their effect on his working ability must have played a part in the redundancy. He says that another employee who was made redundant had recently had a heart attack and won his case at the tribunal.

The redundancy process used a scoring method for the two competing surveyors. The employment expert retained by Mr Syred, Mr Doherty, analyses the scoring and questions whether it was affected by his post-accident work. His opposite number, Mr Gilbert, says that he has no reason to doubt the fairness of the process.

I well understand the instinctive concern that Mr Syred’s injuries might have played a part in the decision; and the contemporary documentation is not as clear as it might be as to the steps taken to ensure that they did not. Young’s first letter concerning the process (9.2.11) was written 6 months after Mr Syred’s return to work and includes ‘…taking into account recent appraisals’. A document explaining the process (8/24) says that ‘The Company has chosen to evaluate your performance over the last 2 years based on the individual tasks in your current job description and it has applied a points system as below.’ However, the note concludes that ‘This selection method is fair, objective and non-discriminatory’.

The scoring assessment includes the task of ‘annual building maintenance inspections and fire risk assessments’. At this point he was office-bound. The scoring is 14/20 and the comment box notes that ‘The score is made up of a balance prior to his return to work. At present he is not taking any due to stress of the visit’. I agree with Mr Gilbert that this indicates an exclusion of the effects of the accident, albeit this is not made clear in respect of the other scored ‘tasks’.

In the result he received a lower score than his rival and so was chosen for redundancy. Mr Syred, quite understandably in all the circumstances, chose not to challenge the decision. I have no further information about the other candidate. In my judgment the available evidence provides no sufficient basis for the conclusion that Young’s took account of his disability, i.e. acted unlawfully, in their redundancy decision.

In any event, I consider that, uninjured, he would have voluntarily left Young’s by no later than the date when he began with HW. When asked about his pre-accident work plans he told Mr Doherty that he doubted whether he would have remained very long at Young’s as he did not particularly like the organisation nor have a positive relationship with his line manager. I accept this and am satisfied that he would have left voluntarily, perhaps taking advantage of the opportunity of voluntary redundancy.

The next question concerns his employment after leaving Young’s. The Defendants say that he would have taken the same course as happened, namely employment with HW at a significantly lower financial package. They point in particular to the evidence of HW’s Paul Bunting that when they met he ‘came across well’ (i.e. with the implication that his presentation was unaffected by the injuries); and to the evidence of his wish for a better work/life balance which a family business such as HW provided.

I disagree and consider that this submission takes no adequate account of the difference between Mr Syred’s position injured and uninjured. His evidence is that he struggled in his post-redundancy search for work. He managed to get several interviews but did not get past the first interview in any application. This he contrasted with his pre-accident experience where he had always got the job he was going for. In the interviews with HW he was ‘open about my issues following the accident’ and took the lower rate of pay (£30,000 pa plus car allowance) in order to get back into work. Whilst acknowledging that his lack of insight into his true post-accident capabilities would have resulted in him playing down the effect of his injuries, the fact is that he was struggling in his daily life and work.

By contrast, I am satisfied that uninjured he would have sought to achieve employment at a package of at least the amount he had received from Young’s. By this stage his marriage was over and I see no reason to conclude that uninjured his personal relationship (whether with Kate Cieslar or Samantha or anyone else) would have caused him to hold back on his work ambitions and drive. This would have included, as he told Mr Doherty, a willingness to return to GK.

On balance I think it unlikely that he would have proceeded to chartered status as a surveyor. He did not value status for its own sake and considered that its advantages in the brewery sector were limited. Against his base salary with Young’s (£39,960 : 2009/10), the employment experts’ agreed table of salary earnings for ‘property professionals’ shows that his earnings as ‘non-professionally qualified’ were above the average for 2009 (£33,121), virtually identical for 2010 (£39,962) and below that for 2011 (£42,757). In addition bonuses were commonplace. Mr Syred had received between £2000 and £6000 pa at GK albeit none at Young’s. Of course I accept that averages are averages and the table figures are subject to many variables.

My conclusion is that Mr Syred uninjured would have required and found employment by the end of May 2011 with a base salary of no less than the amount he had earned at Young’s. With a planned departure date from Young’s, the likelihood is that there would have been no interval between jobs.

As to the claim for 2% annual increases the Defendants point to the experts’ table which shows the average base salary for all property professionals falling from 2011 (£50,250) to 2102 (£48,901), rising only in 2014 (£51,179). For non-professionally qualified the figures go down from £42,757 (2011) to £36,552 (2012), and then up to £40,235 (2013) and £44,870 (2014). They also point to the lack of any rise in Mr Syred’s salary at Young’s between 2008 and 2011. Mr Syred points to the Defendants’ conceded figure of £48,000 p.a. gross for future earnings if uninjured.

True it is that the average figures in the experts’ tables show both falls and rises in average base salary. However, absent a most unlikely contractual provision, an existing employee will not be subject to a reduction in base salary. At worst there will be no increase. The overall trend is of increase between 2010 and 2015; and this is reflected in the Defendants’ figure for future earnings. All in all I consider that the claim of 2% annual increase is appropriate.

Having regard to Mr Syred’s abilities and drive (e.g. his ‘high achiever’ status at GK) I also consider that there were good prospects that he would have done better than average in the job and rewards that he secured, through higher base salary and/or bonus over the period to date of trial. I also consider that his package would have included a car or car allowance, such as he had at Young’s; and that this should be reflected in this head of claim rather than on the separate basis claimed in item B.2. I would allow £20,000 as claimed, but to include the car element.

In reaching these conclusions I have taken account of the Defendants’ points about dyslexia and the pre-accident personality questionnaire but am clear that these did not and would not have had an adverse effect on his career. It is not unusual for driven people to have the sort of characteristics identified in the questionnaire; and it is often a part of their success. Likewise dyslexia did not prevent him taking a good degree or otherwise hinder his career.

The Defendants also submit he failed to mitigate his loss by taking the job with BK at a salary which was kept artificially low in order to ensure that he did not lose any of the benefits to which he was entitled. In my view this was a sensible and reasonable course to take; and reflected the professional intervention which was gradually giving him the necessary insight into his disability.

Mr Syred accepts that Polish law requires the deduction of all benefits received against the claim for loss of earnings. However he submits that Polish law does not prevail in respect of those benefits which are listed in the Social Security (Recovery of Benefits) Act 1997 (‘the 1997 Act’), in this case ESA and PIP. He argues that section 17 of the 1997 Act is a ‘mandatory overriding provision’ of domestic law which trumps what would otherwise be the effect of Rome II.

Section 17 is headed ‘Benefits irrelevant to assessment of damages’ and provides : ‘In assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded’.

Article 16 of Rome II is headed ‘Overriding mandatory provisions’ and states:
“Nothing in this Regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligation.”

Mr Cory-Wright correctly submits that the central purpose of the 1997 Act is to ensure that the State is reimbursed by the compensator for certain state benefits paid to the injured person over the relevant (5 year) period; and in turn to allow the compensator to deduct that sum from the damages payable to the injured person in respect of the relevant head of damage. The Act provides a mechanism whereby the tortfeasor must apply for a certificate of recoverable benefits. As it happens the certificate in this case was a nil certificate because Mr Syred did not start to receive benefits until the 5 years had elapsed.

He then submits that these are provisions of social security law which protect important State interests and they constitute an overriding mandatory provision within Rome II. Thus if two ‘habitual residents’ of Poland are respectively tortfeasor and injured party in an English road traffic collision and the injured party stays to recover and receives benefits listed in the 1997 Act, the compensator must equally obtain and satisfy the certificate required by the Act; and notwithstanding that Rome II provides that the case is governed by Polish law : cf. Article 4(2).

The final step in his argument is that, once the Act prevails in this respect, it must prevail over foreign law in every other respect. It is not possible to pick and choose between the statutory provisions of the Act. In consequence section 17 of the Act must also override the provisions of Polish law.

Mr Palmer’s opposition is on two bases. First, he takes a preliminary point that as a matter of statutory construction the 1997 Act has no application to the facts of this case. Secondly, that ‘mandatory overriding provisions’ involve a stringent test, which is not satisfied by the 1997 Act.

Section 1(1) of the 1997 Act provides, as material :‘This Act applies in cases where - (a) a person makes a payment…to or in respect of another person in consequence of any accident, injury…suffered by the other, and
(b) any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident…’

The ‘relevant period’ is ‘the period of five years immediately following the day on which the accident or injury in question occurred’ : s.3(2).

This accident occurred on 10.2.10. Kaaren Wallace first met Mr Syred on 24.2.15, more than 5 years after the accident. She then applied for the relevant benefits, which were paid but backdated to start from 1.2.15. Therefore no benefits were ‘paid or likely to be paid’ within the 5-year period. In consequence the Act (and therefore s.17) is not engaged.

Mr Palmer also points to s.5(1) as drawing a distinction between the fact and the period of payment. The subsection provides that the certificates of recoverable benefit must specify ‘…(a) the amount which has been or is likely to have been paid on or before a specified date and (b) if the benefit is paid or likely to be paid after the specified date, the rate and period for which, and the intervals at which, it is or is likely to be so paid.’

In answer to my question as to whether the effect of his argument would be to deprive a claimant of the benefit of s.17 in any case where the benefits were not claimed and therefore paid until more than 5 years after the accident, Mr Palmer replied ‘yes’ but submitted that the common law would come to the rescue and defeat any claim of deduction : citing Jackman v. Corbett [1988] QB 154 decided under earlier legislation (Law Reform (Personal Injuries) Act 1948).

Mr Cory-Wright responds in two ways, respectively described as ‘narrow’ and ‘broad’ submissions. First, that properly construed s.1(1)(b) looks to the period in respect of which the payment was made rather than the date of actual payment; so that the backdating of the benefit to 1.2.15 brought the whole statute into play. Secondly, that the opening words of s.1(1) do not govern or qualify s.17, because s.17 by its terms envisages consequences beyond the scope of the 5-year period.

I do not think that the language of s.1(1) can be construed on either basis proposed by Mr Cory-Wright. His narrow argument is at odds with the clear language of s.1(1)(b) and conflicts with the distinction drawn in s.5(1).

His broad argument has more force. The ambit of s.17 is not restricted to listed benefits paid (or likely to be paid) during the 5 year period. Thus in Eagle v Chambers [2004] EWCA Civ 1033 Waller LJ said that “This provision clearly applies to the calculation of losses during the relevant period (subject of course to the Certification process), and to future losses’ [para.51]. If so it is difficult to detect any rational basis for excluding its operation in a case where benefits have not been paid (e.g. because not claimed) during the 5-year period; or for leaving the claimant to the protection of common law.

However the fact remains that s.1(1) is expressed in unqualified terms (‘This Act applies in cases where…’). I conclude, with reluctance, that it would not be a legitimate exercise of statutory construction to interpret those words as if they did not apply to section 17.

In any event for the reasons essentially advanced by the Defendants, my judgment is that the 1997 Act does not constitute a mandatory overriding provision within the meaning of Article 16 of Rome II. Mr Palmer’s arguments and my conclusions draw substantially on the commentary of Mr Andrew Dickinson in The Rome II Regulation : the law applicable to Non-Contractual Obligations (OUP, 2009).

Article 16 follows almost exactly the wording of Article 7(2) of the Rome Convention on Contractual Obligations (1980) (‘the Rome Convention’): Dickinson para.15.14.

In 2008 the Rome Convention was transformed into an EC Regulation (‘Rome I’ – EC Reg. 593/2008). Article 9(1) defines ‘overriding mandatory provisions’ as ‘…provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under the Regulation’ : Dickinson para.15.17.

In its Proposal for Article 16 of Rome II the European Commission noted the ECJ (Footnote: ²) definition of overriding mandatory rules as ‘national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State.’ (emphasis added) : Dickinson para.15.16.

In English law the Private International Law (Miscellaneous Provisions) Act 1995 (‘the 1995 Act’) determines the law applicable to causes of action in tort in all cases which are not governed by Rome II. In a similar way it contains provisions (Footnote: ³) whose effect is to save mandatory rules of domestic law ‘…regarded as so important that as a matter of construction or policy that they must apply in any action before a court of the forum, even where the issues are in principle governed by a foreign law selected by a foreign choice of law rule.’ : Law Commission Working paper No.1987 (1984) para.4.5, cited in Cox v. Ergo Versicherung AG [2014] UKSC 22 per Lord Sumption at [34].

Cox concerned a fatal road accident in Germany. Major Cox’s death occurred before Rome II came into force, hence his wife’s cause of action was subject to the 1995 Act. In the assessment of damages Mrs Cox sought to rely on the provisions of the Fatal Accidents Act 1976 (‘the 1976 Act’) which, by disregarding remarriage (section 3) and benefits accruing as a result of the death (section 4) were more beneficial to her claim than German law. This led to the question of whether the 1976 Act had extra-territorial effect and/or was a mandatory rule within the meaning of the rule of domestic law preserved by the 1995 Act.

The Supreme Court gave a negative answer. Lord Sumption (Footnote: ⁴) regarded both submissions as raising the same issue in the circumstances of the case [26, 35]; acknowledged the possibility that some foreign laws governing the assessment of damages might be so offensive to English legal policy that effect would not be given to them in an English court; but held that the relevant German law did not fall into that category [34, 35]. Thus : “…the German rules …are based on a perfectly orthodox principle which is by no means unjust and is accepted in principle by English common law in every other context than statutory liability for fatal accidents’. [34]. Lord Mance agreed [51].

Contrary to Mr Cory-Wright’s submission, I can see no relevant difference between the ss. 3(3) and 4 of the 1976 Act and s.17 of the 1997 Act. True it is that the 1997 Act, as its title demonstrates, is part of domestic social security law, governing or affecting the relationship between the State, the injured person and the compensator. However the 1997 Act also affects the legal relationship between the injured person and the tortfeasor, in particular through section 17. As with the provisions of the 1976 Act, s.17 overrides the general principle of common law that damages should be compensatory. By contrast, Polish law matches that general principle.

Furthermore, whatever the status of the social security provisions in the 1997 Act I do not agree that the Act must be viewed as one piece. Section 17 is a distinct provision which governs the assessment of damages in a claim by the injured person against the tortfeasor.There is no reason to regard it as a provision which is so crucial to the protection of the political social or economic order of the UK as to override a rule of Polish law which follows the compensatory principle. Whilst Cox concerned the 1995 Act (and the 1976 Act) rather than Rome II I consider that its reasoning and approach support this conclusion by analogy.

For all these reasons Mr Syred must give credit for ESA and PIP against past loss of earnings. As to future loss, given the agreement between the parties as to the multiplicand for his residual earnings, the extent of credit for these future benefits falls to be reflected in the calculation of the multiplier.

In the course of the trial the parties agreed the multiplicand for residual income (£15817 net p.a.) and the multiplier for future earnings to retirement at 67 if uninjured (18 x 0.88 = 15.84). The issues therefore concern the multiplier for residual income and the multiplicand for future earnings if uninjured.

Mr Syred claims £55,000 gross, £39,225.70 net; the Defendants contend £48,000 gross, £35,166 net.

Mr Syred’s figure is based on a package including base salary, and any bonus and additional benefits. Supported by the evidence of Mr Doherty he points to the table showing the average base salary in 2013 for all surveyors in his higher-earning age range (36-45) at £57,079; for all property professionals regardless of age at £48,901; to 39% of surveyors receiving bonuses, identifying an average bonus for surveyors in project management of £11,252; to a limited effect of chartered status; for the agreed prevalence of other benefits (including pension, health insurance, car, shares); to the earnings and bonuses achieved at GK and the car benefits enjoyed. If chartered status is excluded, contrary to his view, Mr Doherty puts forward a base salary range of £47,849 - £49,586, based on age-related base salaries for all male surveyors in 2014 less a deduction of 13% to reflect non-chartered status.

Against this, and supported by the evidence of Mr Gilbert, the Defendants point to the factors discussed above in respect of past loss of earnings including his pre-accident personality, dyslexia, chartered status, life/work balance. Mr Gilbert discounts the importance of bonuses because they are discretionary; Mr Syred received modest bonuses at Greene King and HW and none at Young’s; and suggests that Mr Doherty’s average bonus figure may be skewed towards a few high earners. He concludes with an age-related base salary range of £43,174 - £47,776.

Helpful as was the expert evidence and the RICS table, there are many variables and individual factors which I must assess. As already held I think it unlikely that Mr Syred would have proceeded to chartered status, albeit I consider that this would have been of less significance in the brewing industry where he had his background and particular expertise. On the basis of the experts’ evidence this produces a relatively narrow division on base salary, cf. Mr Gilbert’s highest figure (£47,776 : age range 46-55) and Mr Doherty’s lowest (£47,849 : age range 56+). I do not accept that he would have been held back by dyslexia or personality factors. I conclude that Mr Syred uninjured, with his qualities and drive, would have earned not less than £48,000 gross as a base salary from November 2015. I also consider it likely that he would have obtained a bonus and a car and possibly other benefits. Doing the best I can I assess the likely overall package and multiplicand at £53,000 gross.

Mr Syred is now 42. The basic multiplier is agreed at 18. Mr Cory-Wright submits that this should be discounted by a factor of 0.33 to reflect the fact that he is unemployed and disabled : see Ogden table B (degree category). This produces a multiplier of 6.

The Defendants submit that, as with the multiplier for future earnings if uninjured, the discount should be limited to 0.88, reflecting general contingencies other than mortality. It would be wrong to treat Mr Syred as unemployed or disabled for the purpose of the Ogden tables (a) in any event and (b) in circumstances where the agreed residual income includes benefits whose purpose is to provide income for those who are unemployed or suffer disability. The annual benefits (ESA; PIP; Housing; Council Tax rebate; Tax credit : total £27,200.42) substantially exceed the agreed multiplicand (£15,187). In the event that he uses his award of damages to buy a house and housing benefit (£8736 p.a.) is lost, the remaining benefits will still exceed the agreed multiplicand. A personal injury trust ring-fences the award when assessing eligibility for means-tested benefits; and the value of owned accommodation is not taken into account. The non-means-tested benefits (ESA/PIP) total £11,093 p.a. On top of that he can take low paid work up to c.£100p.w. which brings the total income back up above the multiplicand of £15,187. The threat to means-tested-benefits only arises if and when Mrs Syred returns to work when the children are older. Whilst they are of school age she accepts that she will not be able to return to her pre-marriage full-time occupation.

Mr Cory-Wright responds that Mr Syred is unemployed and disabled within the meaning of the Ogden tables; and that the starting point is therefore a discount of 0.33. He acknowledges the general point concerning the receipt of benefits but submits that the full discount should still apply (alternatively be no less than 0.5) having regard to the prospects that their receipt of benefits will cease or diminish. The particular factors are the Syreds’ strong work ethic and repugnance for taking benefits; the likelihood that they will buy a house and thereby lose Housing Benefit; Mrs Syred’s unchallenged evidence that she will go back to work when both children are of school age, citing her previous employment in sales management at earnings of £36-37,000, thereby forfeiting child tax credits and council tax reduction; the phasing out of ESA as part of Universal Credit; the risk to PIP from ‘austerity measures’.

As a matter of categorisation under the Ogden tables I have no doubt that Mr Syred falls within the description of unemployed and disabled. Such status is to be determined at the date of trial : Ogden para. 39. Mr Syred was and remains unemployed. As to disability, the consequences of his head injury satisfy the three conditions set out in Ogden para. 35, viz. (i) permanence (ii) substantially limiting his ability to carry out normal day to day activities and (iii) affecting either the kind or the amount of paid work that he can do (in his case, both). The Ogden examples of impaired daily activities are no more than that. I am satisfied that the deficit from which suffers and the various forms of professional and family help that he has needed and will continue to need in his daily and working life bring him comfortably within this category.

Accordingly in principle the starting point is the discount (0.33) identified in the Ogden tables. However there must be significant adjustment from that starting point where the benefits currently received substantially exceed an agreed multiplicand which is derived from either earnings or benefits.

In my view the likelihood is that the Syreds will at an early stage purchase a home with their damages award and will in consequence lose their housing benefit. However that will still leave them with benefits of £18,464 p.a., i.e. £2647 above the agreed multiplicand.

The prospects that PIP and ESA will be withdrawn or replaced with a less valuable benefit are too speculative to admit of a discount. I accept that Mr Syred has an inherent dislike of claiming benefits - he used the word ‘hate’. However, he has now taken that course and faces the need to provide for his family. All in all, I do not consider there is a real chance that he will forego claiming available benefits.

I accept Mrs Syred’s evidence as to returning to work and consider the likelihood is that she will do so when the younger child William (born July 2014) is 5. As she acknowledged this will have to be part-time until the younger child leaves school. This is likely to affect entitlement to child tax credits and council tax rebate. If removed in full (£7371 p.a.) this, together with the lost housing benefit, would limit benefits to ESA/PIP, i.e. below the multiplicand. I consider that Mrs Syred will eventually progress to full-time work.

My overall conclusion is that there is a measurable prospect of benefit falling below the agreed multiplicand. The 0.88 discount for general contingences other than mortality is inadequate in the circumstances. A discount of 0.33, or 0.5, is too much. All in all, I assess the appropriate discount at two-thirds. This produces a multiplier for residual income of 12.

The expert evidence showed a striking division between the opinions of Kate Russell (‘KR’) retained for Mr Syred and Alison Dunning (‘AD’) for the Defendants. At a general level I found AD’s evidence to be unpersuasive because of the fact she had initially made the error of not treating this as a brain injury case, focussing on the orthopaedic symptoms; only belatedly appreciated the true medical position; and then made only limited adjustments to her model of care rather than undertaking the complete reappraisal which was necessary.

For her first report (19.3.14) AD had met the Syreds and had received medical documents including a report of Dr Peter Harvey (Footnote: ⁵) (31.5.11), Consultant Neurologist. Under ‘Future Care Requirements’ she recorded from Dr Harvey’s report no more than the observation ‘There is neither neurological nor neuro-otological deficit’. Her ‘Summary’ recorded a consensus of opinion that Mr Syred had made an excellent orthopaedic recovery and that he should be able to continue in his employment and made no reference to brain injury. The following paragraph headed ‘Comment’ referred to suggestions that he needed support/assistance because of ‘…fatigue, variable mood, difficulty with concentration and headaches’ but said that she had ‘…seen no expert medical evidence to date which explains this, however from experience, I am aware of such effects upon individuals who have suffered significant trauma.’ She concluded with a willingness to review her recommendations if further relevant medical evidence became available.

The cited extract from Dr Harvey’s report was the totality of his section headed ‘On Examination’. However his 39-page report shows that he questioned Mr Syred on a range of symptoms (e.g. lack of insight, disinhibition etc) commonly associated with traumatic brain injury (TBI). Whilst not reaching a conclusion as to whether there had been a TBI, Dr Harvey concluded that ‘…on a strong balance of probabilities the cognitive and behavioural changes that I describe above are caused by damage to the brain with the maximum impact on the frontal lobes’’ (para.22). He was not willing to give a prognosis without assessment by a Clinical Neuropsychologist but said that after about a further nine months ‘any cognitive and behavioural changes caused by [TBI] are going to be permanent.’ (para.23). He then noted the ‘important question’ as to whether Mr Syred’s cognitive and behavioural disabilities were going to affect his future employability. AD agreed that she had read all this; said that she would have reflected on Dr Harvey’s views alongside other views; and that she had made an assessment with a completely open mind to look for factual evidence of potential difficulties that had been identified by Dr Harvey. However she accepted that at the time of the report her care proposal was based entirely on physical disabilities; and that she had excluded any question of the effect of further medical evidence of brain injury.

In the experts’ joint statement (6.9.14) AD’s assessment was repeated and again dependent on the orthopaedic picture. By the time of her second report (12.11.14) she had seen the medical joint statements. She noted the agreement that there was evidence of personality change; and of disadvantage in the workplace limited by cognitive emotional personality and fatigue issues. The only change that was made to her care assessment was to increase future gratuitous care if the Court found that the accident had caused Mr Syred to suffer from fatigue affecting his daily living activities.

AD’s third updating report (28.9.15) followed a second meeting with the Syreds; together with their case management representative (Ms Griffiths). The report made no reference to the second report but recorded Mr Syred’s concern, shared by Ms Griffiths, that he had previously underplayed the problem of fatigue; but that the reduced working hours and flexible work pattern had helped. Her report noted problems with memory, fixation and disinhibited behaviour. She concluded that fatigue was not having the same impact as before and removed the previous allowance for fatigue.

In the updated joint statement (10.15) AD observed that KR ‘…favours a brain injury support model…despite the fact that there is no consensus of opinion between the respective experts that Mr Syred’s current symptoms are in fact brain injury related’ and that such model risked Mr Syred developing a ‘learned brain injury dependency’.

In a final report (2.12.15) supplied at trial she took account of further witness statements and the evidence she had heard in the trial; but did not increase her assessment of past or future care.

By contrast KR has from the outset taken account of the developing picture of non-physical deficits and made her recommendations accordingly. Overall I concluded that she was basing her recommendations on a much fuller medical picture than AD. Of course it does not follow that there must be an automatic ‘brain injury model’ of care. I do not consider that KR has produced such a model. Each case must focus on the specific circumstances and I take particular account of the concern to avoid excessive professional intervention in this home. However my starting point is a clear preference for KR’s analysis and approach, albeit I have reduced some of her figures quite substantially.

For gratuitous family care Mr Syred claims a total £35,446.43; the Defendants contend for £9,481. These each give credit for the usual 25% discount on commercial rates.

As to commercial rates, KR uses NJC aggregate figures (£8.98 rising to £9.44); AD uses basic rates (£6.84 rising to £7.19). The aggregate rates allow for e.g. weekend and night-time work. Whilst acknowledging that the care provided is not confined to 9-5 hours (nor indeed weekdays) and that Mrs Syred has drawn on her administrative skills, I consider the basic rate to be more appropriate.

10.2.10 – 15.2.10 : Mr Syred was in hospital in Poland, in a state of induced coma. His mother and brother (Adam) and his partner Lisa flew out to see him on 11.2.10. As Mrs Hall and Adam’s evidence demonstrates this was a distressing experience for them. However the law limits damages under this head to the provision of care, going beyond the fact and normal benefits of visiting : see Havenhand v. Jeffrey, CA, 24.2.97. During this period his care was entirely in the hands of the medical staff. I therefore accept that there is no claim.

16.2.10-21.2.10 : Mr Syred was extubated and his sedation reduced. The family (including his father who arrived on the 19^th) visited every day and provided care, e.g. seeking out staff when he needed assistance and, notably in Adam’s case, dealing with his affairs, e.g. extensive phone calls concerning his travel insurance and return home. This care and support went beyond ordinary visiting. AD allows 2 hours per day; KR allows 10 hours, i.e. including all the visiting. I would allow 3 hours a day.

22.2.10-21.3.10 : He was flown home and was an in-patient at the two successive hospitals. Mrs Hall flew home with him and stayed at hospital for the first night, then stayed locally and visited him each day. She helped in numerous ways, e.g. keeping him dry (he had a very high temperature), finding someone to empty his catheter, getting extra pillows to ease his discomfort; helping him to the commode, calling the staff because of an oozing back wound. This was important care but KR’s 8 hours again goes beyond it. I accept AD’s figure of 3 hours per day.

23.2.10-2.6.10 : Mr Syred was discharged into the care of his mother in the Isle of Wight. Her direct and heavy involvement in his daily care is graphically set out in her statement. By 16.5.10 he was out of crutches. On 26.5.10 Mrs Hall accompanied him on a flight to Poland to see Kate Cieslar. AD allows 30.25 hours pw, reduced to 19.5 hours pw from 16.5.10. KR allows an average 6 hours pd for the whole period. In my view AD understates the care in this period and I would allow an average 5 hours pd for the whole period.

3.6.10-24.6.10 : Mr Syred returned to his home but Mrs Hall came to live with him and again provided extensive care. AD’s figure of 21.5 hours pw is too low; KR’s figure of 8 hours pd is too high. I again allow 5 hours pd.

24.6.10- 21.5.11 : He returned to work during this period (August 2010). An attempted reconciliation with Kate Cieslar did not succeed. Mrs Hall visited more frequently than she would have done and gave support by telephone and with administration. AD allows 1 hour pw for the latter; KR allows 10.5 hours pw. Bearing in mind the Havenhead principle, I would allow 2 hours pw.

21.5.11 – trial : Mr Syred met Samantha on 21.5.11. They were immediately attracted and soon spending a lot of time at each other’s homes. They became engaged in August 2011 and married in May 2012. Their first child was born in December 2012. KR estimates the care provided by Mrs Syred over and above what would otherwise have provided at an average 14 hours pw. AD divides the period at 1.2.15. Until that date she proposes 6 hours a week plus 7 hours a week for 1 week each quarter; and after 1.2.15, a range of 1.75-4 hours pw. The 1.2.15 divide reflects his loss of employment and AD’s understanding that this made him less liable to fatigue : 2 hrs pw. This is then adjusted upwards when part-time employment began in June (4 hrs pw), then reduced to 3 hrs pw following the unrelated surgery of July/August 2015.

In my view AD’s estimates of gratuitous care for this period are unrealistic and particularly reflect her failure to appreciate the significance and effect of the brain injury; or therefore the range of accident-related assistance which Mrs Syred has been providing in his daily life. In cross-examination KR said that she herself had not fully appreciated the extent of her contribution to Mr Syred’s working life and would increase her average figures to reflect this. I think it artificial to break this down into sub-periods and hold that KR’s average of 14 hours pw to be appropriate and reasonable.

KR’s proposal comprises gratuitous care, paid domestic assistance and a support worker/‘buddy’ : £17500 pa; total £451,375. In contrast AD proposes a package of gratuitous care and paid domestic assistance totalling £52,888.

KR starts with four scenarios :

KR’s package is a blend of scenarios 1-3, namely (i) £13,500, combining scenarios 2 and 3, weighted in favour of the prospect that Mrs Syred will return to work plus (ii) £4000, being one-third of the difference between £13,500 and the cost of Scenario 1 and representing a one-third chance of marital breakdown and/or unavailability because of e.g. illness. Scenario 4 is rightly disregarded as unrealistic.

AD’s package is based upon gratuitous care : 4 hours pw until litigation complete; 3 hours pw until Mr Syred is 75; 1 hr pw thereafter ; plus paid domestic assistance 3 hours pw until younger child 16; then 1.5 hours pw until Mr Syred is 75. In addition a contingency of £10,000 is proposed for paid domestic assistance against the risk of marital breakdown (10 hrs pw in that event).

For the reasons given above I consider that AD has continued to take inadequate account of Mr Syred’s cognitive deficit and his need for assistance in daily life, particularly in connection with work, but also in relation to domestic tasks. However I accept that the level of assistance which he requires from Mrs Syred will be less than it was when he was trying to cope with the demands of employment as a building surveyor. I also consider that it will be necessary and appropriate for there to be some additional domestic assistance to take account of the demands on Mrs Syred and the assistance which Mr Syred would otherwise have provided.

For the period when Mrs Syred is not working my assessment is that her gratuitous care will be an average 10 hours per week with additional domestic assistance of 4 hours pw. Applying AD’s standard rate of £7.19 ph, this produces annual gratuitous care of (£7.19 x 10 x 52) less 25% = £2804 p.a. Applying KR’s rates for domestic assistance produces £15 x 4 x 52 = £3120 pa. Total = £5924 p.a.

I have found a likelihood that Mrs Syred will return to work when the younger child starts school (2019), albeit part-time until the younger leaves school. The question is whether it will be necessary and appropriate to have a support worker to provide assistance and motivation in his daily activities and leisure pursuits. I have found this a more difficult decision. This is a household which has had a lot of external (in my view beneficial) intervention, but Mrs Syred is candid in her concern at the impact on her home. I note that KR’s scenario 3 envisaged this need arising if Mr Syred were self-employed and needing the support which Mrs Syred would otherwise provided. In her evidence this widened into a broader ‘buddy’ role to include e.g. joining him in outdoor pursuits. Conversely, he has an evident need, stemming from his deficit, for assistance and adult company in his daily life which would be missing if Mrs Syred is at work and he is not.

I regretfully see no prospect of Mr Syred having a successful self-employed business. However my conclusion is that some level of support would be beneficial and reasonable and would in fact be welcome to them, but not to the extent proposed by KR. I would allow 6 hours per week, together with a reduced care by Mrs Syred of 7 hours pw. This produces : gratuitous care 7 x 7.19 x 52 less 25% = £1962.80; paid care : one–half of the Schedule figure (£12778.23) = £6389. Total = £8351.

Accepting that Mrs Syred is likely to have employment for the greater part, I would overall take £7500 pa as the figure to represent Scenarios 2 and 3.

I also consider that account should be taken of the risk of contingencies that Mrs Syred will not be available through marital breakdown or otherwise. For all the strains and demands I take a more optimistic view than KR and Counsel. They married after the accident and Mrs Syred displayed love and devotion through all the troubles. The professional help is providing Mr Syred with essential insight into his condition and the adverse effect of flirtatious behaviour. Turning to the figures in Scenario 1 I consider 28 hrs pw excessive and would reduce the total to from £25,000 to £17,500. Of the difference (£17500 - £7500 = £10000) I would allow an additional £1500 p.a. to reflect the Scenario 1 possibility.

These figures represent annual averages and take account of possible reduced need, e.g. post-75. This all produces a total multiplicand of £9,000 for future care.

In my view the case management provided by Kaaren Wallace has been essential. Mr and Mrs Syred made clear the benefit which it had provided in helping them sort out their lives, find appropriate help and devise strategies. The Defendants seek to reduce the claimed sum of £33,119.04 to a round £30,000 on the basis that her services were overprovided in some respects and included crisis management of unrelated matters such as Mr Syred’s admission to hospital for unrelated pancreatitis. I do not agree with these criticisms. As to extraneous problems, these only added to the strains in this home and required assistance which would have been unnecessary if Mr Syred were uninjured by the accident.

Case management : Future (C.4)

Following AD’s final report, the principle of future case management is no longer in dispute but again there is a considerable dispute as to the amount that is needed. KR proposes a round £8500 p.a. based on a blend of costs if Mrs Syred remains available (£7245 pa, being 48 hours pa) and if not (£10,818 pa, 84 hours). AD proposes ‘low level’ case management and the respective figures/hours are £2496 (22 hrs) and £6744 (48hrs). The Defendants submit that the possibility of Mrs Syred being unavailable should be satisfied by a contingency sum of £10,000.

AD’s lower level reflects in particular her recommendation that external care (which would require case management intervention) is unnecessary; that the domestic assistance/gardening/DIY/ etc is sourced locally and not complex; and that this litigation is coming to an end. However she acknowledges the benefit which they have enjoyed from turning to an independent person at times of crisis and pressure.

I have held that some external care will be necessary and again consider that AD does not sufficiently take account of Mr Syred’s deficit, the domestic strains which it imposes and the consequential need for this external help and guidance. I prefer KR’s approach but would reduce the lifelong cost to £6500 p.a., giving particular account to the end of the litigation, the fact that domestic assistance is in place and my greater optimism about the marriage.

The past claim is £6469. The defendants allow £4543, to the date of the October 2014 Schedule. The balance of £1866 is challenged on the basis that it is not supported by the expert evidence; and that symptoms to the neck, right knee and leg are not attributable. I accept Mr Syred’s evidence of the benefit that he has gained from physiotherapy including deep tissue massage, which have given help including with headaches. As to the orthopaedic experts Mr Rickman acknowledged the lack of scientific evidence of the benefit of physiotherapy; but said that it was clearly beneficial to Mr Syred; that when he stopped he noticed the difference; and concluded that he should continue to have physiotherapy/massage once or twice a month in the long term. Mr Korab-Karpinksi said that there was no benefit but in cross-examination agreed that his view was potentially controversial and that the acid test was whether the patient reported benefit. He added that his experience was that patients with cognitive problems were referred for physiotherapy. Overall I prefer the evidence of Mr Rickman but in any event consider that Mr Korab-Karpinski’s answers support the claim. I allow the past expenditure in full.

As to the future, the claim is for one session pm at £70 pm, i.e. £840 p.a. lifelong. The Defendants reject the claim entirely. On the basis of the benefit enjoyed by Mr Syred and the expert evidence I would allow for physiotherapy every 2 months, i.e. £420 p.a. for life.

The past expenditure on Jo Johnson is agreed at £9065.

For the future Mr Syred claims 6 sessions pa of psychological treatment at £165 per session, i.e. £990 p.a. for life. The Defendants do not dispute the principle but propose a lump sum of £3500. The neuropsychologists’ joint statement agreed that provision should be made for such treatment. Mr Bracey suggested a contingency fund to facilitate access to an average of six sessions per year. I understood Mr Leng to be less optimistic about the success of such treatment, on the basis that the psychological component was largely organically driven. However he agreed that the contingency proposal was reasonable. On the basis of this evidence I accept the claim in full.

Agreed at £500 and £373.

PDE5 inhibitors : The urological experts agree that it is likely that Mr Syred will require this and state that the tablets (£10-13 each) are usually required on a basis of one or twice a week. Mr Syred claims an annual cost which reflects the average of those figures (£11.50 x 1.5 x 52 = £897 p.a.) and a lifetime cost of £897 x 25.81 = £23,151.57. The Defendants describe this as a speculative claim of which there is no or little evidence and propose an allowance of £5000. In the light of the agreed expert evidence I do not agree that the claim is speculative and award the sum claimed.

Urological test and reviews : the claimed total of £28,752.56 is agreed.

This claim relates to the aortic injury and possible future treatment and review. Asked for an estimate cost of the annual CT scans/review and possible vascular intervention Professor Bradbury replied (29.8.14) that for the latter given the nature of the uncertainty it was impossible to do more than hazard a guess of £150,000 over a lifetime at today’s prices. However he made clear that this intervention must only be in a specialist NHS/teaching hospital. CT scans and review by vascular surgeon would typically cost a total of £500-800; but again should be undertaken through the NHS.

On the basis that future treatments must be within the specialist skills of the NHS the Defendants say that there can be no award under this head. Mr Cory-Wright submits that there should be a contingency sum (£50,000 is suggested) to reflect the possibility that the provision of such treatment ceases to be available on the NHS.

Given the gravity of the aortic injury which he suffered and the importance of such future treatment it is right to consider the possibility that NHS proviso will cease to be available for this type of treatment. Having done so, my conclusion is that the possibility is too speculative to justify the making of any award to reflect that contingency.

For the reasons discussed above in connection with foot and balance problems, I am satisfied that the claim for orthotics should succeed. As to the future there has not been the updating report which Mr Collins recommended. However his conclusion was that Mr Syred ‘…will be reliant upon long-term access to orthotic services’ and his recommendation for annual replacement of insoles is unlimited in time; likewise the additional repair costs.

Accordingly I allow the claimed £2610.55 for the cost to date. After deduction of the double-counted initial purchase costs (£1320), I accept the future cost at a total £24,694.

The cost to October 2014 (£239) is agreed. I understand that the 2015 membership fee at Spread Eagle (£880) has been refunded.

The claim for future gym membership (£880) is resisted on the basis that as a fit and active man enjoying vigorous outdoor pursuits Mr Syred would have joined a gym and/or or incurred similar sporting/leisure costs in any event. The response is that joining the gym was accident-related and provided a structured basis for beneficial rehabilitation, going beyond mere leisure activity. In my view gym membership is a reasonable and beneficial accident-related expenditure. He had not previously joined a gym. Given all his other activities, I think it unlikely he would have done so. No figures are suggested of money saved from abandoned outdoor pursuits. I would allow a future cost of £880 p.a. However I do not think that a lifetime multiplier is appropriate for this item and would reduce it to the multiplier adopted by the parties for expenditure (e.g. DIY etc.) to age 75, i.e. 21.31.

Occupational therapy (B.4(f)) : agreed at £1067.

The past claim is for the cost (£10964.28) of the services provided by Christine Stobbs. In their October 2015 Counter-Schedule the Defendants allowed £7292 on the basis that costs after October 2014 were excessive and should be limited to £5000. In closing Mr Palmer submitted that there should be no recovery of her costs after that date. This is on the basis that Ms Stobbs had made a ‘serious professional mistake’ in recommending vocational rehabilitation at a time when Mr Syred need Cognitive Behavioural Therapy (CBT) in order to gain insight into his employment situation.

In the autumn of 2014 Mr Syred was hoping for freelance work from HW after his employment ended in January 2015. He had received at most a ‘vague verbal promise’ (KR 4/282) to this effect. Ms Stobbs understood from him that a director had given him encouragement. On 16.12.14 she reported to his solicitors that such work was known by him not to be realistic; whereas on 19.1.15 (following a meeting with his solicitors) she was advising him on the steps he would need to obtain part-time self-employed work with HW. She said that the object was to put the idea to bed. However she helped him draw up a list of people he could contact in his network and thought that he might be able to do a cut-down version of the job he was doing, with the help of a support worker. Having heard the evidence at trial she realised that all the support workers in the world would not enable him to do so. On 14.4.15 she recommended to Jo Johnson that he would benefit from CBT. The Defendants’ criticism is that that CBT should always have come first and that in the meantime all expenditure on VR was wasted.

Although Ms Stobbs’ evidence on this was rather confused, I do not accept that Mr Syred should be deprived of the cost of her fees. It was appropriate to instruct her and her work was valuable. The position was complicated and Mr Syred was focussed on the possibility of part-time work. I allow this claim in full.

The future claim is agreed at £5000.

The claim for ‘equipment, including bedding’ has been compromised at £1750. The AutoCAD is now agreed at £5713. For the future, a number of items were abandoned at trial. I deal with the remainder.

Prescriptions : now agreed to age 60 at £104 pa x 14.21 = £1478.

Cognition aids : Items totalling £11 p.a. which are of help to those with memory and organisational problems from brain injuries, plus an allowance of £100 p.a. for ‘small aids and apps’ for the same purpose on smartphones. The Defendants dismiss the former as de minimis and the latter as the remnant (previously £500) of a figure ‘plucked out of the air’. Given Mr Syred’s deficit and continuing technological advances, I consider the items and allowance to be reasonable and recoverable on a lifetime basis.

Mattress : Mr Syred claims £100 p.a. as the additional cost of special mattresses. His evidence makes clear the benefit of the two successive special mattresses which he has bought (£833; £1520). AD says that a memory foam mattress (£280) would be adequate. The Defendants submit that this is no more than the cost of a normal mattress. I prefer the evidence of benefit that Mr Syred has gained from a more expensive mattress and would allow the lifetime annual sum claimed.

Computer support : Mr Syred claims an allowance of £100 p.a. for continuing IT support from the IT Consultants (BCTec) who, on recommendation from Ms Stobbs, has helped him install modify and maintain IT equipment. Mrs Syred gives evidence of the benefits which this has provided. The Defendants say that this is just normal expenditure. I consider that Mr Syred would not have taken on this sort of help if he had not suffered this head injury; that it is particularly beneficial in his cognitive condition; and that it is reasonable and appropriate to allow the claimed annual allowance for lifetime continuing support.

Gardening/DIY. The future claim is now agreed at £865 p.a. x 21.31. The Defendants dispute the claim for past gardening expenditure, saying that Mr Syred can do lighter tasks such as mowing and there is insufficient evidence of the paid work carried out. In my view the expenditure (£839.60) and need for paid gardening services performed from May 2015 to trial are established, reasonable and recoverable.

Car valeting. £30 p.m. (£360 p.a.) for the car and motorcycle. Mr Syred has always taken pride in the clean appearance of his vehicles. He now finds that the work makes him very tired and painful. When he can afford to he pays someone £10. The Defendants say that there is no evidence that this task is beyond his capabilities. I consider that his pain and fatigue clearly support this expenditure as reasonable and recoverable.

Laundry costs. The claim is for £943. This was spent in 2015 on the intervention and advice of Kaaren Wallace, as a practical measure to take some of the strain off Mrs Syred. The Defendants say that this was a task which should have been managed by Mr and Mrs Syred. Consistent with my conclusion that Kaaren Wallace was providing an invaluable service during a time of huge strain and stress relating to the accident, this was a practical justified and recoverable expenditure.

Window cleaning. Given the pain, balance and fatigue problems suffered by Mr Syred, I consider this expenditure (£20 pm = £120) to be reasonable and recoverable. This sort of domestic task falls into the same category as future Gardening/DIY which the Defendants accept as recoverable in principle.

Dog walking. The past claim is for £300 cost incurred when Mr Syred was in hospital in the summer of 2015 for the unrelated pancreatitis and gall bladder removal. Although this expenditure was a sensible suggestion of Kaaren Wallace to ease the burdens on Mrs Syred, I consider that this past expenditure does not arise from the accident.

For the future, Mr Syred claims £15 pw (£780 pa) to give the dogs the longer walks which he cannot manage. The Defendants say that the dogs were bought in 2013 as a means of helping Mr Syred get more exercise; that he is capable of doing so; and that the paid dog walking has been kept on as a ‘luxury’ since he came out of the unrelated hospital treatment in 2015. I would allow this future claim as a reasonable and related expenditure. Dog-walking is a beneficial activity for Mr Syred but his problems with gait and pain mean that he cannot give the necessary long walk; while Mrs Syred will be heavily occupied in her domestic and future work commitments. I allow £780 pa at the agreed reduced multiplier to age 75 (21.31).

Past : My award of past loss of earnings includes an element for the benefit of a car. I do not think that the right approach is to claim by reference to the cost of the Audi car which he purchased after he left Young’s. I therefore make no separate award under this head.

For the future Mr Syred claims the annual difference in cost between his present Audi car and a Volvo C90 as recommended by KR. Mr Syred confirmed in his evidence that the Audi had many of the features which he needed in his condition, e.g. automatic; a range of helpful features (e.g. seats with a ‘memory’ to obviate manual adjustment; parking sensors; automatic opening boot etc) and at a comfortable height for getting in and out. KR recommends the Volvo in particular because of its additional height thus further assisting access and egress. The calculated total difference to age 75 is £24,326.

The Defendants resist this claim on the basis that the Audi has the essential features which he needs, including sufficient height; that a special running board step would be needed for easy access; and that such a change of car and additional cost is unnecessary.

I accept these submissions and conclude that the need for this change of car has not been established. Accordingly there is no award under this head.

Other items

Removal costs B.4 (w). The house move in May 2015 required 2 vans and 3 men for 3 days, at a total cost of £2079.72. The Defendants say that the move was unconnected with the accident and in any event would have required professional removals in whole or part (e.g. packing materials, carpet cleaning and vehicle costs). Mr Syred said that he had always carried out moves himself, hiring a van, but was now unable to do so. Allowing for the need to hire a van and buy packing materials his claim was put at £1500.

Whilst I accept that Mr Syred was a man who would always want to do such a task himself, I consider that (i) the extent of the work that was involved in this move and (ii) the demanding working life that he would have been leading make it more likely that he would have incurred some paid assistance in any event. I would allow £750 under this head.

Miscellaneous expenditures : B.4(l)(m)(n)(p)(q)(r) : These are now agreed at £300.

BUPA/Insurer’s outlay/excess (B.4 para.44; B.5; B6) : These are now agreed as claimed.

Past Travel (B.7) : This is now agreed at £3000.

If all the injuries and their consequences would have been avoided, my deduction from the total award, applying the Judge’s law of Article 362 and taken account of the experts’ guidance on Polish law and practice, would have been 25%. However it is clear that the overwhelming predominant injury is to the brain; and the Defendants have not established that that injury would have been avoided or lessened if a seat belt had been worn. Furthermore the largest items of loss, i.e. past and future loss of earnings, past and future case management and future care are entirely attributable to that injury and it plays the entire or a substantial part in many other heads of award. The aortic tear was a very serious injury but on my findings causes no distinct pecuniary loss.

I have considered whether to try and make an individual calculation against each head of loss but have concluded that the right approach, consistent with Polish law and practice, is to have an overall percentage which reflects the predominance of the brain injury. Taking all these considerations into account I conclude that the overall deduction for contributory negligence from the total award should be 5%.

In the absence of any evidence or argument that Polish law should produce a different result, interest should be assessed on the basis of English law. On damages for pain and suffering this should be the conventional 2% from date of service of proceedings. Interest on special damages is agreed at one-half of the special account rate since the date of accident.

I now ask the parties to calculate and agree the total award in the light of my findings. I will hear Counsel as necessary on that and all consequential matters.